upon which the marriage relation subsisted; and we do not perceive that there has been, either by legislative enactment or by the growth of the law in adapting itself to the present condition of society, any change in that relation which can afford the plaintiff a remedy. So to speak, marriage acts as a perpetually operating discharge of all wrongs between man and wife, committed by one upon the other. As said by Settle, J., in State v. Oliver, 70 N. C. 60, 'It is better to draw the curtain, shut out the public gaze, and leave the parties to forget and forgive.'

"We are not convinced that it is desirable to have the law as the plaintiff contends it to be. There is no necessity for it. Practically, the married woman has remedy enough. The criminal courts are open to her. She has the privilege of the writ of habeas corpus, if unlawfully restrained. As a last resort, if need be, she can prosecute at her husband's expense a suit for divorce. If a divorce is decreed to her, she has dower in all his estate; and all her needs and all her causes of complaint, including any cruelties suffered, can be considered by the court, and compensation in the nature of alimony allowed for them. In this way, all matters would be settled in one suit as a finality.

"It would be a poor policy for the law to grant the remedy asked for in this case. If such a cause of action exists, others do. If the wife can sue the husband, he can sue her. If an assault was actionable, then would slander and libel and other torts be. Instead of settling, a divorce would very much unsettle all matters between married parties. The private matters of the whole period of married existence might be exposed by suits. The Statute of Limitations could not cut off actions, because during coverture the statute would not run. With divorces as common as they are now-a-days, there would be new harvests of litigation. If such a precedent was permitted, we do not see why any wife surviving her husband could not maintain a suit against his executors or administrators for defamation, or cruelty, or assaults, or deprivations that she may have wrongfully suffered at the hands of the husband; and this would add a new method by which estates could be plundered. We believe the rule, which forbids all such opportunities for lawsuits and speculations, to be wise and salutary, and to stand on the solid foundations of the law.

"The plaintiff invokes the case of Blake v. Blake, 64 Me. 177, as supporting her right to sue. That was a suit in assumpsit. In matters of contract there may be a cause of action during coverture, not enforceable by the ordinary methods until afterward. The common law has been so far abrogated by the force of various legislative acts as to allow contracts to be made by husband and wife with each other. And, to a certain extent, contracts between man and wife always were upheld in courts of chancery. That case, therefore, differs from this.

"Then, if the husband is not liable, the question arises, whether the co-defendants are liable in this action. We think it follows from the previous reasoning that they are not. The true test as to their liability is, whether an action could have been maintained against them at the time of the act complained of. It is clear that no action was then maintainable. If the co-defendants had been then sued, the action must have been in the name of the husband and wife, and the husband would have sued to recover damages for an injury actually committed by himself. Husband and wife must declare that the injury was ad damnum ipsorum. She cannot, at common law, sue in her own name alone, nor in his without his consent. She cannot appoint an attorney, ordinarily, but he must do it for her. His conduct and admissions can affect the suit. He can release the cause of action, and she cannot. She could do no act to redress an injury to her without his concurrence. Nor has the common law been changed in any of these respects until 1876, which was after this action was commenced. Laws of 1876, ch. 112. The damages recoverable in an 53

VOL. XII.

action would have belonged to him, and not to her. And, at the same time, if she had committed a tort, he would have been civilly liable for it. It is very certain, therefore, that no action could ever have been sustained against them in his name. They merely aided and assisted him. But if there was no injury to him, there was none to her. They were one. Without doubt, after the death of the husband, a wife may maintain an action in her own name for a wrong committed upon her while her husband was alive, if no action was instituted nor the cause of action released during his lifetime; and, undoubtedly, the same right follows after a divorce a vinculo matrimonii. But she can only recover for such a wrong as she and her husband could have recovered for in their joint names while the marriage relation subsisted. She succeeds after death or divorce to just such rights as existed before that time. The language of the law is, that the right survives to her. But there must be some right in existence to survive. Here there was none. A thing cannot continue after au event which does not exist before. It would not be the survival of a claim, but would be one newly created. Norcross v. Stuart, 50 Me. 87; Marshall v. Oakes, 51 id. 308; Ballard v. Russell, 33 id. 196; Laughlin v. Eaton, 54 id. 156; West v. Jordan, 62 id. 484; Hasbrouck v. Weaver, 10 Johns. 247; Snyder v. Sponable, 1 Hill (N. Y.), 567; Bacon's Abr. Baron and Feme, K.; Shaddock v. Clifton, 22 Wis. 114. Plaintiff nonsuit.”

MASSACHUSETTS.

GEORGE TYLER BIGELOW, LL.D. - Chief Justice Bigelow graduated from the academic department of Harvard College in the famous class of 1829; studied law and practised in Boston; was appointed by Governor Briggs a justice of the Court of Common Pleas, which office he held for three years; was promoted to the bench of the Supreme Judicial Court as the successor of one of the greatest of Massachusetts judges, Mr. Justice Wilde, — on which bench he served until 1868, a period of seventeen years, the last seven of which he was the chief justice; resigned Dec. 31, 1867, and from that time until his death was the actuary of the Massachusetts Hospital Life Insurance Company.

As a lawyer, he was active, zealous for his clients, careful in preparation, impetuous in the trial of causes, and of a somewhat imperious disposition. As a judge, he was cautious, patient of labor, prompt in the despatch of business, and tender of the rights of suitors. He was not a great man, nor was he a great judge. He did not philosophize. His was a practical, wise, and steady mind. Quick of apprehension, he grasped and appropriated the ideas of others. Averse to speculation, and guided largely by precedent, he did much to keep the law settled and the counsels of the court united. He had a taste for, and in early life was schooled in, the militia of his State. He brought to the administration of justice many military characteristics. Frequently complained of by the bar for quickness of temper, for a peremptory, and often a hasty, assertion of his power as presiding justice of the court, he was known by all men to be upright, fair-minded, and impartial. His opinions, contained in thirty-eight volumes of the reports, are models of lucid statement, testifying to the force and clearness of his mind; and the opinion of the court in Brattle Square Church v. Grant, 3 Gray, 142, which he delivered, is his enduring monument.

NEW JERSEY.

INTER-STATE EXTRADITION. UNITED STATES DISTRICT COURT. In re Noyes, petitioner for habeas corpus. Another contribution is made to the discussion of the question of extradition between the States, by the decision in this case. The prisoner asked to be discharged, on the ground that, although surrendered to be tried for a certain alleged offence, he was held to stand his trial on another and a different one, and also on the ground that the proceedings for his surrender were irregular. The opinion of the court (NIXON, J.), after referring to the facts in the particular case, proceeds :—

"We are thus brought to the consideration of the naked questions: (1) Whether a fugitive from justice extradited from one State of the Union to another, on the charge of the commission of a specific crime, can be held by the courts of the State to which he is sent for trial, for another and different crime? and (2) whether such person may be detained by the authorities of the State for prosecution, notwithstanding it may appear that his arrest under the rendition proceedings was without legal authority?

"If these inquiries are answered in the affirmative; if the State court, without regard to the lawfulness or unlawfulness of the methods adopted to obtain the custody of the body of the prisoner, may detain him for trial upon the same or other indictments charging him with offences against the criminal laws of the State, he has no claim upon this court for a discharge, on the ground that his rights as a citizen were violated by the parties who secured his person in a foreign jurisdiction other than by due process of law.

Questions were discussed in the argument which may properly arise between governments, as to the construction of the extradition treaties or between individuals, as to responsibility for the invasion of personal rights, but which, in my judgment, are not involved in the present inquiry.

"It may be true, that where a treaty exists between two independent nations in regard to the surrender of fugitives, or a criminal is given up on the allegation that he had committed a specified crime, good faith between the governments requires that he should not be tried for other offences.

"It may be true, that when a citizen has been placed under restraint without lawful cause, and without due process of law, he can hold every one who caused or contributed to his imprisonment to a strict accountability in a civil action. In the one case, the right of asylum is sacred, except so far as it has been yielded by the terms of the international compact, and any abuse or perversion by one government of the privileges of arrest granted by the treaty, is a just cause of complaint on the part of the other.

"In the other case, so jealous is the law in regard to the invasion of the individual liberty of the citizen, that all unauthorized restraint of his person is followed by damages against the offending party.

"But here, a court of competent jurisdiction has the custody of a person who is charged with the commission of certain offences against the laws of the State. The answer to the charge is, that some other person has done a wrong to the prisoner, by violating the laws of another State, in arresting him without proper authority.

"In a criminal case, this can hardly be reckoned a pertinent response. A person arraigned for the commission of a felony cannot plead in bar that he ought to be excused from answering the charge, because other parties trespassed upon his personal rights.

"It is confounding of matters which are essentially separate and distinct. It is a claim on the part of the accused that his criminal violations of the law are to be condoned by his personal injuries. It is asking a court to suspend its most responsible duties, to wit, the trial of alleged offenders against the penal code of the State. while the persons charged with the crime are instituting preliminary investigations into the methods adopted to bring them within its jurisdiction. Such a course, for obvious reasons, is allowable in a civil suit between private litigants; but, for like obvious reasons, cannot be, and never has been, allowed in criminal proceedings, where the object of the prosecution is to punish an offender against the public. On a claim of this sort the court says to the prisoner: 'You are going too fast. We will consider one thing at a time, and every thing in its regular order. The precise matter which now concerns you and the court is, whether you are guilty of the crime charged against you. As you happen to be found within our jurisdiction, we will first settle that question, and afterward, if needs be, will inquire into the circumstances attending your rendition for trial, or will leave the respective governments to discuss them, or will remit you to the recovery of such damages as you may be able to obtain in the civil courts for the violation of your rights of person.'

"All the authorities of Great Britain and the United States, when carefully distinguished and interpreted by their circumstances, support this view of the law.

The earliest cases in England to which the attention of the court has been called are Rer v. Marks, 3 East, 175, before the King's Bench, in 1802, and Er parte Kraus, 1 B. & C. 238, in the same court in 1823, in both of which it was held, that, when a party was liable to be detained on a criminal charge, the court would not inquire on habeas corpus into the manner in which the capture had been effected.

"The case of Susannah Scott, 9 B. & C. 446, before the King's Bench, in 1829, was thus: A rule nisi had been obtained for a habeas corpus to bring the body of the prisoner in the custody of the marshal, in order that she might be discharged, on the ground that she had been improperly apprehended in a foreign country.

“It appeared on the return that an indictment for perjury has been found against her in London; that a warrant for her arrest to appear and plead had been granted; that the police-officer having the warrants went beyond his jurisdiction, and followed her to Brussels, and then arrested her, conveyed her to Ostend against her will, and thence back to England. Chief Justice Tenterden, on discharging the rule, said: The question is this, whether, if a person charged with a crime is found in his country, it is the duty of the court to take care that such a party shall be answerable to justice, or whether we have to consider the circumstances under which she was brought here.' I thought, and still continue to think, that we cannot inquire into them.

"The courts of South Carolina, in the same year, were considering the same question, as appears in the case of The State v. Smith, reported in 1 Bailey, 283.

"In the case of The State v. Brewster, 7 Vt. 118, before the Supreme Court of Vermont, in 1835, an attempt had been made in the court below to have the proceedings in an indictment against the defendant dismissed, on the ground that he was forcibly and against his will, and without the assent of the authorities of Canada, brought from that province. The court held that the matter set up could not avail the prisoner.

"Dow's Case, reported in 18 Penn. St. 37, is in many of its features quite similar to the one under consideration, but the illegality of the capture could not be set up by the fugitive.

"The case of State v. Ross, 21 Iowa, 467, was cited also; and no reference was made to the cases of United States v. Caldwell, 8 Blatchf. C. C. 131, because they had been fully discussed in the argument, and were not considered pertinent in the present inquiry.

"They all turn upon the construction of the treaty between the United States and Great Britain, in regard to the extradition of fugitives from justice, and involve the authority of the courts to hold a surrendered fugitive for trial for any other than extraditable offences. It may, however, be remarked, in reference to this question, that, by the second clause of the sixth article of the Constitution of the United States, treaties are declared to be the supreme law of the land, and by the second section of the third article they are brought as directly within the judicial power, as cases in law and equity, arising under the Constitution and laws of the United States; unless, therefore, there was something in the treaty with Great Britain which required the aid of legislative provisions to give it effect (see 2 Pet. 353), it is somewhat difficult to understand or indorse the reasoning of the learned judge who decided the case of Caldwell v. Lawrence, and especially where he asserts that complaints of the abuses of the extradition proceedings do not form a proper subject of investigation in the courts of the United States.

"It is the conclusion of the court, upon principle and authority, that the State court has the right to hold the prisoner for trial for the offence charged against him, without reference to the circumstances under which his arrest was made in a foreign jurisdiction.

"It necessarily follows that there is no authority here to discharge him on the habeas corpus. Neither the Constitution of the United States nor sect. 753 of the Revised Statutes makes any provision for the writ in such a case, and the prisoner must be remanded."

NEW YORK.

LIABILITY FOR JUDICIAL ACT. The case of Lange v. Benedict, lately decided by the Court of Appeals, finally determines a question of very great importance to judicial officers and litigants. The plaintiff in this case, a gentleman of respectable standing, was indicted for embezzling mail-bags, a somewhat venial offence, and tried at a court at which defendant presided. He was convicted, the jury assessing the value of the bags embezzled at less than $25. The penalty prescribed by statute in such case was $200 fine, or one year imprisonment. Defendant, however, sentenced him to both the fine and imprisonment. He paid his fine, and applied by writ of habeas corpus for his release from imprisonment. The writ was returnable before defendant, who was yet holding the term of the court at which the conviction was had. Upon the return, defendant set aside the former sentence, and re-sentenced plaintiff to one year's imprisonment. This act was declared by the United States Supreme Court to have been without authority of law (Ex parte Lange, 18 Wall. 163), and plaintiff was released. Thereafter he brought this action against defendant for damages, by reason of his false imprisonment, setting up the facts of the case, and that the act of the defendant was wilful and without authority. A demurrer was interposed, on the ground that the complaint did not state facts sufficient to constitute a cause of action, it being claimed that defendant was not liable for the consequences of any act done by him as a judge of a court of general jurisdiction. The demurrer was overruled at Special Term (11 Alb. L. J. 22), but was sustained at General Term (14 Alb. L. J. 313). The Court of Appeals have affirmed the judgment of the General Term, and have thereby asserted the principle that a judge is irresponsible civilly for almost every act he may do while on the bench. Perhaps such a rule is necessary to secure independence to the judiciary; but it would seem that a person injured by a gross abuse of judicial power, such as the act committed by defendant was, should not be remediless. —Albany Law Journal.