to take or kill rabbits for his own use, took and killed some wild rabbits, upon his master's land, and converted them dishonestly to his own use by selling them. The taking, killing, removing and selling were parts of one continuous action. The court held that a conviction of the gamekeeper for embezzling the rabbits could not be upheld. In Reg. v. Townley, L. R.,1 C. C. R. 315, it is held that wild rabbits cannot be the subject of larceny and consequently cannot be of embezzlement. The general rule is that no larceny at common law can be committed of animals in which there is no property, either absolute or qualified, as of beasts that are feræ naturæ and unreclaimed, such as deer, hares and river or pond, or wild fowls at liberty. Even a wild animal caught in a trap has been held not a subject of larceny. Norton v. Ladd, 5 N. H. 203; see also Warren v. State, 1 Green (Iowa), 106; Hanman v. Mockett, 2 B. & C. 934; Rex v. Powell, 14 Eng. L. & Eq. 575; Wallis v. Mease, 3 Binn. 546; Cock v. Weatherby, 1 S. & M. 333; Gillet v. Mason, 7 Johns. 1. proved by legal evidence, the only proof being general conduct and reputation, and, second, whether the action of dower is governed by the statutes of limitation. The court held affirmatively as to both questions. Proof of marriage in this way is admissible where the right to property depends upon it. Alfray v. Alfray, 2 Philim. Ec. 548; Gaines v. Relf, 12 How. 472, but on the trial of indictments for polygamy, and in actions for criminal conversation, direct evidence is required, it being necessary in such cases to prove a marriage valid in all respects. Morris v. Miller, 4 Burr. 2059; Leader v. Barry, 1 Esp. 353; Commonwealth v. Norcross, 9 Mass. 492; Commonwealth v. Littlejohn, 15 id. 163; People v. Humphrey, 7 Johns. 314. But a deliber-conies, in a forest chase or warren, fish in an open ate declaration of a prisoner on trial for bigamy or for adultery, that he was married to the alleged wife, has been held sufficient evidence of marriage. Regina v. Upton, 1 C. & K. 165; especially if the marriage took place in a foreign country. Reg. v. Simmonsto, id. 164; Cayford's case, 7 Greenl. 57. But see Birt v. Barlow, Doug. 174; State v. Roswell, 6 Conn. 446. As to whether the action for dower is within the statute, the rule varies in different States. It is not within the English statute of Henry or of James. Angel on Lim., § 367; Park on Dower, 311. Neither is it within the statute in New Hampshire (Barnard v. Edwards, 4 N. H. 107), in Georgia, in North Carolina (Spencer v. Weston, 1 D. & B. 213), in Tennessee (Guthrie v. Owen, 10 Yerg. 339), nor in Maryland (Wells v. Beal, 2 G. & J. 468). In New Jersey, dower is barred after twenty years, and in Ohio, after twenty-one years. In the State of Michigan the decision in May v. Rumney, 1 Mich. 1, has been supposed to determine that the statute did not apply, but the case at bar indicates a different rule as now prevailing, and the reasons given for this conclusion will commend themselves to every one. "Every principle of justice and policy," says the court, "is against favoring ancient and dormant claims. These dower claims are often, if not generally, unknown until presented, and it is difficult in many cases to find out whether they exist or not." The courts in former times, for reasons satisfactory to themselves, excluded dower claims from the general rule, but the Michigan court does not think that the language of the present statute in force in that State should be disregarded in order to except this action from its operation. The case of Queen v. Read, L. R., 3 Q. B. D. 131, involved a curious question under the statute re lating to embezzlement. The English statute provides that "whosoever, being a clerk or servant, shall fraudulently embezzle any chattel money or valuable security, which shall be delivered to or received, or taken into possession by him, for or in the name or on account of his master or employer," shall be guilty of embezzlement. A gamekeeper not authorized The case of Brennan v. Guardians of the Poor of Limerick (13 Ir. L. T. Rep. 33), decided on the 22d of February last by the Queen's Bench Division of the Irish High Court of Justice, inpublic officers for negligence. Plaintiff's son was, volves an interesting question as to the liability of while sick with fever, received as a charity patient in a hospital attached to the Limerick work-house of which defendants, who constitute a public corporation, had charge. By reason of a failure to furnish sufficient attendants to watch over him, he was able in the delirium which accompanied the fever, to leave his bed and wander about. In his wanderings he fell some distance into a yard, and was so injured that he died. The court held that an action would not lie against defendants, saying, that while they might as a corporation be liable to indictment for a neglect of duty, they would not be liable to a civil action for a negligent omission in distinguished from Livingstone v. Guardians of Lurgan carrying out their administrative duties. The case is Union, 2 Ir. R. L. 202, where it was held, that a wrong committed by the guardians in making a sewer from the work-house premises into plaintiff's stream, and polluting it would render them liable in their corporate capacity. The general rule, however, seems to be that whenever an individual has suffered injury from the negligence of an administrative officer, who therein acts contrary to his official duty, an action lies on behalf of the party injured. Nowell v. Wright, 3 Allen, 166; Briggs v. Wardwell, 10 Mass. 356; Robinson v. Chamberlain, 34 N. Y. 389; Kennard v. Willmore, 2 Heisk. 619. And the fact that the defendant contracted faithfully to perform his duties, not to the plaintiff but to the government, is no defense, for the action is founded not on contract but on breach of duty. Hover v. Barkhoof, 44 N. Y. 113; Adsit v. Brady, 4 Hill, 630; Marshall v. York, 11 C. B. 655; Burnett v. Lynch, 5 B. & C. 589. Judicial officers are, however, not liable upon grounds of public policy for negligence in the performance of their judicial duties. Bacon's Max. 17; Floyd v. Barker, 12 Rep. 23; Pappa v. Rose, L. R., 7 C. P. 32; Cunningham v. Bucklin, 8 Cow. 178. BRITISH EXTRADITION PRECEDENTS. BY SAMUEL T. SPEAR, D. D. THE THE diplomatic correspondence between Great Britain and the United States, with reference to the case of Winslow, related to the question whether the treaty of 1842 between the two governments provides, either expressly or by implication, that a party extradited under it on the charge and proof of a specific crime, shall not, until he has had a reasonable opportunity to return to the jurisdiction from which he was thus removed, be tried for any offense committed prior to his extradition within the jurisdiction of the receiving government, other than the one for which he was demanded and surrendered, and further, whether the delivering government has the right, under the treaty, to insist that the receiving government shall thus limit its action in respect to the trial. Secretary Fish answered both of these questions in the negative, and Lord Derby answered both in the affirmative; and neither convinced the other. The argument of Secretary Fish, while omitting any analysis of the provisions of the treaty itself, consisted mainly in the citation of precedents, supporting, as he alleged, his view. Some of these precedents are British: and, hence, they were presented as argumenta ad hominem for the consideration of the British Government. We propose in this article to state the leading cases thus referred to, and ascertain their pertinency and significance with reference to the matter in dispute. 1. The first case is that of Heilbronn, who, in 1854, was extradited from the United States to Great Britain, and in regard to whom Secretary Fish says: "The facts, as stated by the Solicitor-General of Great Britain, who had charge of the proceedings, and who was examined before the late British commission on the extradition question, were that the prisoner, being extradited for forgery, was acquitted, and was thereupon tried and convicted for larceny, an offense for which he could not have been surrendered, not being enumerated in the list of crimes mentioned in the treaty." Foreign Relations of the United States, 1876, pp. 213, 214. Mr. Mullens is the man to whom the Secretary alludes as the "Solicitor-General of Great Britain," but who held no such office at the time, and acted simply as the solicitor in a private prosecution, with which, as we shall see, the British Government had nothing to do. The answer of Lord Derby in respect to this case is as follows: "Her Majesty's Government much regret that a charge was made against the prisoner not justified by the extradition warrant under which he was received; but though the charge was preferred according to the ordinary forms of criminal procedure in Her Majesty's name, it is the wellknown course of law in this country that every pri vate individual has the power of presenting an indictment, while, as a matter of fact, the presenting or finding of that indictment is entirely unknown to any person representing the executive government. Her Majesty's Government must repeat that this departure from the extradition warrant in the case of Heilbronn was not the act of Her Majesty's Government, nor was it called to their attention or known to them; and Her Majesty's Government are not aware of any other instance which has occurred in this country, during the long period that has elapsed since 1842, where a person surrendered under the treaty of 1842 has been put upon his trial for an offense other than that in respect to which his extradition was demanded." Id., p. 259. The Lord Chancellor of England, alluding to this case in his speech in the House of Lords, said: "When he [Heilbronn] was tried here this actually occurred: the judge at once said that the facts showed that the offense committed was embezzlement and not robbery, and the man was tried and sentenced for the former offense, for which he ought not to have been surrendered under the terms of the treaty. That would not have been very creditable to the Government if they had ever heard of it; but the Government never heard of it. It was never brought to their notice at the time of the prosecution, or until it was mentioned by the committee of the other house in 1868." Id., p. 292. His Lordship, if correctly reported, was mistaken as to the crime on which Heilbronn was extradited. It was not robbery, but forgery. Mr. William B. Lawrence, in an article published in the ALBANY LAW JOURNAL, vol. 14, p. 91, refers to a letter written January 4th, 1875, by Sir Thomas Henry, the English magistrate to whom extradition matters were confided, in which the writer says: "It will be seen that it was a private prosecution, which was conducted by Mr. Mullens, as solicitor for the private prosecutor, and that the English Government had nothing whatever to do with the trial, and probably knew nothing about it. The trial took place in 1854, more than twenty years ago, and at that period the law of extradition was very little known, either in England or the United States, and it did not occur to any one to raise an objection to the prisoner being tried for a second offense." These statements effectually dispose of the case of Heilbronn. The British Government had no knowledge of the proceeding at the time, and was made aware of it only by the report of a committee of the House of Commons in 1868. The prosecution was a private one, and what was done was the act of the judge who tried the case, and not of Her Majesty's Government. The Government of the United States was not apprised of the facts. The question, whether a person extradited on a specific charge can be tried for any other offense than the one for which he was surrendered, was not raised before the court, and no decision was made in regard to it. Sir Thomas Henry says that it did not occur to any one to raise such a question. Lord Derby admits that the proceeding was "not justified by the extradition warrant," and expresses the regret of Her Majesty's Government that there was such a departure from this warrant. Neither government was appealed to at the time; and, hence, neither, by acquiescence and approbation, or by protest, placed any construction upon the treaty of 1842. The case, in the light of these facts, plainly has no significance as a precedent. 2. A second case is that of Von Aernam, who, in 1854, was surrendered by the United States to the authorities of Upper Canada, upon the charge of forgery. Mr. Clarke, in his treatise on Extradition, sec. ed., p. 101, mentions this case, and refers to 4 Upper Can. Rep. C. P., 228. It appears that, after Von Aernam's committal in Canada, an application was made for his release on bail, on the ground that the evidence of the corpus delicti was not sufficient, and that at the most the offense was simply that of obtaining money under false pretenses, which was not within the treaty. In answer to this application, and denying it, Chief Justice Macaulay said: "The committing magistrate has transmitted copies of the depositions, etc., before him, but they are not all that may be reasonably supposed to exist. It is not necessary to express an opinion on the point, but I am much disposed to regard the instrument as a forged bill; and even if the prisoner's offense amounted to false pretenses only, I should hesitate to bail him under the circumstances under which he has been taken, surrendered, and received into custody. Being in custody, he is liable to be prosecuted for any offense which the facts may support." The question before the court, and the only one upon which it passed judgment, was, not for what offense the prisoner should be tried, but whether he should be admitted to bail. The court was inclined to the opinion that the offense was that of forgery, which was the crime specified in the extradition proceedings; but, if it were simply that of false pretenses, the decision was not to grant the application for bail. The remark incidentally fell from the lips of Chief Justice Macaulay, that, "being in custody," the prisoner "is liable to be prosecuted for any offense which the facts may support;" and this remark is the only part of the utterance which Secretary Fish quotes. This case, in being neither pertinent nor authoritative, lacks the cardinal qualities of a good precedent. It is not pertinent, because the question considered and decided by the court is entirely different from the one under discussion between Lord Derby and Secretary Fish. Chief Justice Macaulay, in the words quoted, simply stated a general rule of criminal law which no one disputes; but in stating that rule he expressed no opinion as to the proper construction of the treaty of 1842 between Great | Britain and the United States, and especially as to the rights upon which each might insist, under the provisions of the treaty, in respect to the trial of extradited persons. No such question was before him or decided by him; and what he said in denying an application for bail is not to be forced out of the relations in which the utterance was made. Nor is the precedent any better as an authority. If the words used really mean all that they were quoted to prove, they would not furnish a precedent binding upon the British Government, unless it could be shown that the Government, having knowledge of them, had adopted them as an expression of its views. To make a single sentence, casually falling from the lips of a provincial judge, when denying an application for bail, an authority as against Her Majesty's Government as to the proper construction of an international compact, is immensely to overrate its importance, especially so when that compact was not the subject-matter of the utterance, and not necessarily involved in its meaning. We may hence dismiss this precedent as being neither pertinent nor authoritative, and, of course, of no value in settling the point that was under discussion. 3. The third case is that of John Paxton, who, in 1866, was extradited from the United States to Lower Canada, on the charge of forgery. The charge brought against him in Canada was that of uttering a forged promissory note, knowing it to be forged. His plea was that he could not be tried except for the specific crime set forth in the extradition proceedings. The facts of the plea were denied in the replication; and a jury, having been empannelled to try the issue of fact, found "that the prisoner was extradited for forgery, whereas he is actually indicted for uttering forged paper." On a motion to set aside this verdict and grant a new trial, made by the prosecutor before the Queen's Bench, it was decided by two judges against one that the question submitted to the jury was not a proper one for a jury to determine, that a new trial of that issue should not be granted, and that the prisoner should plead and answer forthwith to the indictment found against him. Though he protested against being tried for uttering forged paper, when he had been extradited on the charge of forgery, he was, nevertheless, tried and found guilty on the former charge; and, the sentence being postponed, the verdict was subsequently confirmed by the Court of Appeal, consisting of the same judges, with the addition of Chief Justice Duval. See 10 Lower Can. Jurist, 11, 212, 352, and Clarke on Extradition, sec. ed., pp. 98-100. The court, in this case, proceeded upon the assumption that the defendant had no standing at its bar, except to plead to the indictment found against him. It, hence, tried him for the offense charged in the indictment, without any reference to the terms of the treaty under which he had been extradited, or to the proceedings under that treaty, or to the question whether the offense thus charged was or was not the one for which he had been surrendered by the United States. This was, in practice, the adoption of the French doctrine, which assigns the construction and application of extradition treaties to the political department of government, and leaves the judiciary nothing to do but simply try offenders for the crimes charged against them, without inquiring into the form of their arrest, or the mode in which they were brought within its juris diction. The proceeding in this case manifestly has no application whatever, considered as a precedent, to the point in dispute between the two governments in respect to Winslow. Lord Derby and Secretary Fish were not discussing the question whether a person, extradited under the treaty of 1842, and afterward standing before a court of justice and there charged with crime, could himself set up, as a plea of defense, that the crime for which he was about to be tried, is not the one for which he was surrendered, and on this ground claim, as a legal right, that the court has no jurisdiction to try him for that crime. They were not disputing about any question of right or jurisdiction as between the prisoner and the court before which he was arraigned. Their question related to the proper construction of the treaty itself, with reference to the inquiry whether it, expressly or by implication, stipulates that the party surrendered shall be tried only for the offense for which the surrender was made, and hence whether the delivering government, and not the prisoner, has the right to insist that the jurisdiction acquired by the surrender shall be limited to this purpose. Their question was one of diplomacy as between the two governments, and not one of law as between the prisoner and the court. Upon this point the court in the case of Paxton expressed no opinion, and passed no judgment; and, hence, its action has no pertinency whatever to the matter which was the subject in controversy. Let it be granted, for the sake of the argument, that the prisoner cannot make the treaty the basis of a legal right in respect to the crime for which he may be tried; and it does not follow that the surrendering government cannot claim in respect to him the rights which flow from the treaty. The two questions are entirely distinct. It is quite true that if it were an established and well-known rule, in the courts of different countries, when dealing with extradited persons, to pay no at tention to the fact of their extradition and try them for any crime legally charged against them, and if governments should make extradition treaties, and deliver up fugitive criminals to each other, with a full knowledge of this fact, and with no provisions in those treaties, express or implied, qualifying or limiting the application of the rule, then, indeed, the facts would show a tacit acquiescence in the rule on the part of these governments, and thus it might become a rule of international law. This is conceivable, but it is not real. No such fact of long and general acquiescence exists or has ever existed. The few cases in which the question, whether an extradited person can be tried for any offense other than the one for which he was surrendered, has been considered by courts, falls very far short of establishing any such rule; and, in these cases even, the decisions have not been uniform one way or the other. No one will pretend that such a rule exists as a general usage of nations. 4. The fourth case is that of Rosenbaum, occurring in Canada in 1874, in respect to which Secretary Fish says that "the discharge of the prisoner was claimed because there was no prohibition under the laws of the United States against the trial of criminals for offenses other than those for which they were extradited, as required by the [English] act of 1870." Foreign Relations of the United States, 1876, p. 235. Secretary Fish quotes two remarks made by Mr. Justice Ramsay, of the Supreme Court of Canada. The first remark is the following: "If it were recognized as a principle of international law that a prisoner extradited could only be tried for the crime for which the extradition took place, it would not have been necessary for the Imperial Parliament to make these provisions." The provisions referred to are those of the English act of 1870. There are three answers to this remark. The first is, that the primary and main question between Lord Derby and Secretary Fish was not whether such immunity is secured to an extradited prisoner by "international law," independently of treaties, but whether it was involved in the treaty of 1842 between Great Britain and the United States. The second is, that the text writers on international law who have referred to the subject at all, recognize and with great uniformity affirm the "principle" which Mr. Justice Ramsay states as an hypothesis, simply for an argumentative purpose. The third is, that the object of the provisions referred to in the English act, as Lord Derby asserts, and as the reason of the thing clearly implies, was not to gain ends that lie beyond the scope of British extradition treaties, including that with the United States, but to secure their proper execution according to the construction placed upon them by the "Imperial Parliament." It is not to be assumed that Parliament, when passing a law for the execution of these treaties, consciously and deliberately designed to insert in the law a "principle" entirely unknown to them, and in excess of their provisions, and that, too, without the consent of the other parties to these treaties. The assumption contradicts all the probabilities and proprieties of the case, and withal is not sustained by a particle of evidence. The proper view of the English Extradition Act is that Parliament judged it to be suitable legislation to carry into effect the provisions and purposes of existing extradition treaties. There are, hence, two serious difficulties with the second remark of Mr. Justice Ramsay. One is its irrelevancy to the point under discussion between the two governments; and the other is its insignificance, considered as furnishing a rule by which to determine what an American court may or may not do in dealing with an extradited person. (To be concluded.) LIABILITY OF HUSBAND TO DIVORCED SUPREME JUDICIAL COURT OF MAINE, MAY 5, 1877. ABBOTT V. ABBOTT.* A wife, after being divorced from her husband, cannot maintain an action against him for an assault committed upon her during coverture; nor against persons who confederated with and assisted him in committing the assault. The other remark of Mr. Justice Ramsay is as follows: "I am not, however, aware that it has been laid down in England, that a man, once within the jurisdiction of English courts, could set up the form of his arrest, or the mode by which he came into custody, as a reason for his discharge when accused of crime." This remark plainly has no pertinency to the question under discussion between Lord Derby and Secretary Fish. That question, as () previously observed, related, not to what the prisoner might plead in his defense as a ground of "discharge," but to what the delivering government might under the treaty claim in his behalf. Nor has the remark any significance, as a rule of law, when sought to be applied in this country to the trial of extradited persons. The Constitution makes the treaties of the United States a law of the land;' part of "the supreme British and, as such, they are a rule for courts. asylum. The opinion states sufficient facts. A. Wiswell & A. P. Wiswell, for defendants. Precisely the same question was lately before the English court, and the decision and the reasons on which the decision is grounded meet with our unqualified approval. Phillips v. Barnett, 1 Q. B. D. 436. It is there held that a wife, after being divorced from her husband, cannot sue him for an assault committed upon her during coverture. In the course of the discussion in that case, Lush, J., says: "Now I cannot for a moment think that a divorce makes a marriage void ab initio; it merely terminates the relation of husband and wife from the time of the divorce, and their future rights with regard to property are adjusted according to the decision of the court in each case; Field, J., says: "I now think it clear that the real substantial ground why the wife cannot sue her husband is not merely a difficulty in the procedure, but the general principle of the common law that husband and wife are one person;" and Blackburn, J., states the objection to be "not the technical one of parties, but because, being one person, one cannot sue the other." The theory upon which the present action is sought to be maintained is, that coverture merely suspends and does not destroy the remedy of the wife against her husband. But the error in the proposition is the supposition that a cause of action or a right of action ever exists in such a case. There is not only no civil remedy but there is no civil right, during coverture, to be redressed at any time. There is, therefore, nothing to be suspended. Divorce cannot make that a cause of action which was not a cause of action before * To appear in 67th Me. Rep. |