dissenting.
My sense of duty compels me to record a dissent from the majority opinion. The government is to protect the people in the enjoyment of their homes, their liberty, and their lives, and they should not be disturbed in such enjoyment because of criminal proceedings commenced against them in a foreign state, unless such enjoyment has been forfeited by a clear violation of written law, and *306such violation is made manifest by the application of the demanding state supported by evidence which is satisfactory to our courts. The decision of the governor of the asylum state is not final. The alleged fugitive is entitled to sue out a writ of habeas corpus and refer the question to the courts. Hawley, Interstate Extradition, p. 29;, In re Briscoe, 51 How. Pr. (N. Y.) 422. He further says: “It must appear in some way that the act charged amounts to a crime in the demanding state. This is a jurisdictional fact.” On application to the courts, a prisoner may be discharged. That some one has alleged a conclusion before the justice of the peace in Michigan who issued the warrant against the alleged fugitive, and which the governor of that state seeks to comply with, should not be enough to subject the prisoner to the inconvenience, expense and ignominy of arrest and prosecution. The danger is that a loose application of the extradition law between states may be used for the mere purpose of enforcing a collection. This should not be tolerated. As this case comes here on appeal from the judgment and order of the district court for Lancaster county, it follows that the evidence must be considered as all included in the testimony taken before the district court and in the original application for the order of arrest. This application is based upon affidavits hereinafter referred to, and which were filed before the justice of the peace in Michigan.
In the view that I take of this case, the petitioner entered into a contract with one Hr. Bland for the attempted collection of a lot of doctor bills, and the contract provides for mutual *accounts between the petitioner and Bland; that is, if the debtor paid an account to Bland, then Bland was to be indebted to the petitioner in the sum of 25 per cent, of the amount paid, and, if the petitioner collected a claim, he was to give 75 per cent, of it to Bland, and quarterly settlements were to be made between them, the contract looking to a final settlement at the end of one year. There was no guilt on the part of *307the petitioner, because Bland was indebted to the petitioner for commissions where the debtors had paid directly to Bland, and the petitioner was indebted to Bland on accounts which he had collected, and the contract was made between them on the 19th of February, 1912, and the year which the contract was to run had not expired and would not expire until February 19, 1913. Before the year was one-half over, and in May, these proceedings were commenced.
Two affidavits by Bland were filed before the justice of the peace who issued the warrant. The first affidavit contains a formal charge of embezzlement without the details, and the other affidavit proceeds in detail to set up the facts which constitute the alleged offense. One of these affidavits charges the indebtedness of the relator on information and belief. Of course, the charge against the accused is no stronger than its weakest statement, and, if the weakest statement is on information and belief, then the whole charge stands on information and belief, and the result is that a man is arrested and taken away from his family and prosecuted when the charge against him is on information and belief. The affidavit setting forth the details recites that the accused entered into a contract with the complainant under the name of the “Mercantile Law Company,” and said he had a peculiar system of collecting; that he made personal calls on all debtors; that he would take statements of accounts and collect the same on a commission basis; that “he represented that he would take the accounts and collect the money due from the debtors and settle with me for all amounts collected on a certain date.” The affidavit then sets up the fact that the petitioner “was to collect as many of said accounts as possible for me, and that he was to retain 25 per cent, of the amount collected for his work; that 75 per cent, of the amount collected was to be held by him, as my agent, for a period of 90 days from the date the contract was entered into; * * * that this contract last mentioned was entered into on or about February 19, *3081912;” that in compliance therewith, he, the said Dr. Bland, gave the said petitioner a large number of accounts, beginning with Morris Duffield, $6 and reciting the accounts, “on which accounts the said William A. Maynard has collected the sum of $98, as deponent is informed and believes ” said information being based upon the adffiavits of the said parties last mentioned that they have paid various amounts, as mentioned in said affidavits, to said William A. Maynard on said accounts. The agreement made between Dr. Bland and the petitioner, omitting the heading and the signatures, and the closing, is as follows:
“This agreement witnesseth: That J. P. Bland of Adrian, Mich., has become a subscriber to' Mercantile Law Co., of Cleveland, Ohio, and that said subscriber is entitled to the benefits herein set forth for the term of one year from above date. Mercantile Law Co. obligates itself to give prompt attention to all claims placed in its hands for collection and adjustment by said subscriber, and also agrees to apply such legal redress which will enforce collections. The subscriber hereby authorizes Mercantile Law Co. to commence actions at its discretion in the several courts of this state or of any other state on any of the claims placed in its hands, and agrees that, 'if such action be brought, he will in no manner interfere with the same, or cause the action to be discontinued until the case has been prosecuted to judgment, unless the consent of Mercantile Law Co. can be obtained. In consideration of the aforesaid services, J. P. Bland of Adrian, Mich., agrees to report to Mercantile Law Co. as soon as collected all payments received on claims filed for collection and to pay to said Mercantile Law Co. at once a commission of 25 per cent, on all collections and settlements made on the accounts placed in its hands, whether the money is paid by the debtor to Mercantile Law Co. or to the subscriber. It is mutually agreed that this contract shall remain in force for a period of one year from the above date, and that Mercantile Law Co. shall be entitled to its *309commission on all claims settled by either party hereto, within the life of this contract. It is further agreed by Mercantile Law Co. that it shall make settlement for all moneys belonging to the subscriber once every 90 days from the date hereof. It is mutually agreed and understood by both parties herein -mentioned, that payment of the aforesaid commissions upon all collections and settlements shall constitute the full amount of liability of the subscriber.”
It will be observed that the liability in this case is based upon a contract of (1) doubtful meaning, (2) uncertain “information and belief.” If the mere charge against the relator in a case of this kind is sufficient to enable him to be taken from his home to a foreign state there to be prosecuted, then liberty is not very secure in Nebraska. It is not the name by which an alleged criminal act is called that determines whether the thing done is done in violation of the law; it is the act done. It is unreasonable to suppose that the laws of-Michigan provide for the punishment of a collector who is not in default under a contract which he has made with his client or customer. To the writer it is time enough for Dr. Bland to insist upon his warrant for extradition when he has' demonstrated the fact under his doubtful contract that the relator owes him. The contract might receive one construction in Nebraska and another in Michigan. Dr. Bland became a subscriber to the “Mercantile Law Company,” and was “entitled to the benefits” set forth in the agreement “for the term of one year” from February 19, 1912, the date of the agreement. The second paragraph obligates the “Mercantile Law Company” to give prompt attention and adjustment by said subscriber, “and-also agrees to apply such legal redress which (as) will enforce collections.” The next paragraph authorizes the law company to commence actions in the courts of the state or of any other state, and obligates the doctor not to interfere with the same. The next paragragh provides the terms of compensation, and that the contract shall remain in force for the period of *310one year; that the parties shall make settlement every 90 days. It is contended by the prosecution that to make “settlement” means to- make payment. The word “settlement” is defined in Webster’s New International Dictionary at length. That, part of it applicable to this case reads: “Act or process of adjusting or determining; composure of doubts or differences; arrangement; adjustment; as, settlement of a controversy, of accounts, etc.; also, condition of affairs thus adjusted.” It was not payment that was talked about, but a mere settlement, an adjustment from time to time between the parties, and there could be no default by either party until the expiration of the year. Townsend, Moran, Growth, Kelley, Lewis, Edmund, each made payments to Dr. Bland on which the doctor owed the relator his commissions. Howes, Townsend, Kelley, Lewis, Edmund, Seethaller, Sherman, and Preston also paid money to Dr. Bland, and he retained the commission due to the relator. Dr. Bland’s affidavit says they were doctor bills, “statements of accounts which were owing to me from patients for services rendered.” It is the doctor’s contention that the relator owes him under the contract a balance for collecting these doctor bills, many of which were old, and some of which were outlawed.
Something of an examination of the embezzlement cases in Michigan shows that the relator should not be convicted. People v. Wadsworth, 63 Mich. 500. In the foregoing case funds were deposited in a bank that belonged to the city treasurer. They were put in there as ordinary deposits, and it was held that the banker was not guilty of embezzlement. See, also, 3 Howell, Ann. St. (Mich.) sec. 9263a, making it a felony for a public official to appropriate to his own use moneys received in his official capacity, and section 9263c, making the failure to pay over to his successor all moneys and property collected prima facie evidence of the offense. In this case it was held that' the accused might rebut a prima facie case made under the statute by proving that moneys were in fact *311received, and that the shortage represented saw-logs which he had taken in payment of taxes, in lieu of money, and which had been lost. People v. Seeley, 117 Mich. 263. The court held that there should be an order of court -which he refused to obey. That applies to this case. There is no order of the court in this case, touching the indebtedness, which the relator refuses to obey. Along the same line is People v. Fairchild, 105 Mich. 437.
The law under which the relator is prosecuted reads: “Section 55. If any officer, agent, clerk, or servant of any-incorporated company, foreign or domestic, or if any clerk, agent, or servant of any private person, or of any co-partnership, except apprentices and other persons under age of sixteen years, or if any attorney at law, collector, or other person, who, in any manner, receives or collects money or any other property for the use of and belonging to another, embezzles or fraudulently converts to his own use, or takes and secretes with intent to embezzle and convert to his own use without the consent of his employer, master, or the owner of the money or goods collected or received, any money or property of another, or which is partly the property of another and partly the property of such officer, agent, clerk, servant, attorney at law, collector, or other person, which has come to his possession or under his care in any manner whatsoever, he shall be deemed to have committed larceny, and, in a prosecution for such crime, it shall be no defense that such officer, agent, clerk, servant, attorney at law, or other person, was entitled to a commission out of such money or property, as commission for collecting or receiving the same for and on behalf of the owner thereof; provided, that it shall be no embezzlement on the part of sunk agent, clerk, servant, attorney at law, collector, or other person, to retain his reasonable collection fee on the collection, or any other valid interest he may have in such money or property.” 3 Howell, Ann. St. (Mich.) sec. 9176a. The foregoing contemplates that the person making the collection shall retain his commission “or any other valid in*312terest he may have in such money or property.” The petitioner testifies, and it is not denied, that he was put to expense in the collection of these accounts. He is entitled therefore to payment. It follows, therefore, from the act itself and from the decision of this court in Van Etten v. State, 24 Neb. 734, as, also, Miller v. State, 16 Neb. 179, and State v. Kent, 22 Minn. 41, that the petitioner is not guilty of embezzlement under the statute.
There can be no criminal intent so long as the agent or collector is making an honest contention for what he deems to be his own. Hamilton v. State, 46 Neb. 284. Nor can there be a conviction where there is an unsettled and unliquidated account between the parties. State v. Culver, 5 Neb. (Unof.) 238. And, where the defendant in a criminal prosecution has a.n interest in the property or money alleged to have been fraudulently converted to his or her own use, there can be no conviction of the crime of embezzlement. McElroy v. People, 202 Ill. 473.
I am unable from the record to see that the relator is guilty of anything; but, if he is guilty of anything, then he is guilty of false pretenses. If he drew a contract and did not intend to go ahead and collect the money, but intended to get hold of some small part of it and then to keep it, and he used the contract as a fraudulent inducement for the purpose, then the thing done was not embezzlement, but it was false pretenses, and he should be arrested and tried upon that charge. Hess v. Culver, 77 Mich. 598, 18 Am. St. Rep. 421, 6 L. R. A. 498; Pearl v. Waiter, 80 Mich. 317; Knight v. Linzey, 80 Mich. 396, 8 L. R. A. 476; Stoney Greek Woolen Co. v. Smalley, 111 Mich. 321; Getchell v. Dusenbury, 145 Mich. 197. Henig cannot lawfully return the relator to Van Burén county, because there is no charge pending against him there. There is no proof attached t<3 the extradition warrant that the relator committed an offense in Van Burén county. If the relator is to be deprived of his liberty, first let a new application be made to the governor of Nebraska by the governor of Michigan and an orderly procedure be had.
*313The relator excuses changing his name upon the ground of difficulty with his mother-in-law, who threatened to prosecute him. He is now supporting his wife and two children.