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