general property in the sense of that section of the Code. For that character of property does not embrace mere rights of action for injury sustained by the wife during coverture for assault and battery, slander and the like, or for rights of which she is the meritorious cause, either at common law or by statute, unless the statute in creating a new cause of action authorizes her to sue or invest her with general or separate estate in the subject-matter of the action. In actions for personal injury inflicted upon the wife during coverture, the husband and wife must join. But the husband may generally sue alone, or unite his wife with him for any ordinary right not concerning her general or separate estate accruing during the marriage relation, and in such cases the common law, which is virtually continued by sub-section 2, of section 34, supra, has wisely left the propriety of instituting such actions to the discretion of the husband; and sound reason, domestic peace and good public policy unite in sustaining the rule that gives to the husband such control. Our statutes have made but little change if any in these rules, except to allow the wife to sue if the husband deserts her, and to enable her to protect her separate or general property. When statutes, like that in regard to inebriate husbands, give the wife the right to sue and recover, she may do so by force of the express words of the statute; and the fact that the cases in which she may sue are generally provided for in the Code of Practice and statutes creating new causes of action which expressly invest her with that right, furnishes a strong presumption that her capacity to sue, which has been increased by statute from time to time, must be ascertained from the language of such statutes and unrepealed consistent common law rules. The wife, where she is the meritorious cause, under a statute like this or under the one authorizing rewards, may be a proper or necessary party, yet she could not maintain such actions without joining her husband unless he deserts her, then she might bring or defend them in his name."

A novel case is Peoria, etc., R. Co. v. Chicago, etc., R. Co., Illinois Supreme Court, 19 Cent. Law J., 111, holding that a railway company engaged in the transportation of freights, for hire as a common carrier, is bound to transport or haul upon its road the cars of any other railroad company when requested so to do, and will hold the same relation as a common carrier to such cars, that it does to ordinary freight, and in case of loss will be held to the same measure of liability to the owner of the cars as would attach in respect to any other property. The court said: "The question presented is one of first impression in this court, nor have counsel cited any case where the exact question involved was considered by any court of last resort. It leaves this court free to determine the law on principle as it shall be thought best to subserve public interests, as well as the private interests of corporations concerned. No proof is needed to show the extent and

the importance of the interests involved in the decision. It is a matter of so much public concern that judicial notice may be taken of the fact that cars belonging to different companies are interchangeably used on all the principal railroads in the United States, and that no company could do any considerable freighting business that did not conform to this general usage. Without such usage it would be difficult, if indeed it would be possible, to transact the commercial business of the country. Freights for shipment across the continent could not well be stopped at the terminus of each carrier's line and reshipped in cars of the connecting carrier. That would occasion more delay than the necessities of eommerce would tolerate. The extent of the usage in regard to the exchange and transportation of cars among so many different railroads would seem to require such exacting rules and regulations as would insure the strictest accountability on the part of companies that may transfer or haul cars over their respective roads. * And why may

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there not be such a thing as a common carrier of cars either with or without its load of freight. As to the freights the car contains, it will be conceded such carrying roads are common carriers, and are subject to the strict liability of such carriers, and as has been seen by a constitutional provision, all the rolling stock and other movable property belonging to a railroad in this State shall be considered personal property. What reason exists for discriminating against this class of personal property, and for holding that railway companies carrying it shall not be regarded as common carriers? The mode of moving it whether on wheels or in carriages, ought not to be the foundation of any distinction. In either case, the property is in the exclusive care and control of the carrier, and there is as much reason, arising from public considerations, why such a carrier should be held to the strict liability of an insurer for the safety of the property in the one case as in the other. * * * The undertaking of defendant in regard to moving the car was within the scope of the general business it had engaged to do for the public, and it would seem no reason exists why the liability for the safe delivery of the car should not be the same as with respect to the freight it contains, which it is conceded is that of a common carrier. On what principle may defendant be considered a common carrier as to freights on its road, and not as to the car containing it, which it is moving over its road with its own propelling power. The law, as has been seen, makes all railways in this State public highways, open to the use of all persons for the transportation of their persons or property, under such regulations as may be prescribed by law, and it is apprehended, it is unlawful to make any discrimination as to the property offered to be carried, or as to whether it belongs to a private person or to a corporation. If it is such property as is capable of being carried with the means ordinarily employed by such carrier, the obligation is imperative, and the carrier must receive

THERE

THE EXTRADITION OF ΕΝΟ.

HERE has been so much misapprehension as to the grounds upon which the extradition of John E. Eno was demanded from Canada, that a brief 'reference to one or two of the real points raised may be interesting and profitable, at least to lawyers. While the case became in certain respects a celebrated one, it is not likely to appear in the books, as the decision is of a single judge sitting as a magistrate, and this decision, even if reported, does not fairly indicate the serious reasons advanced in favor of the extradition. These reasons are of interest to the profession because they are in some respects new, and present points never yet decided; they were well considered and deemed sound before any application was made for extradition; but the New York newspapers failed to learn, either before or after the proceedings, the real points of the controversy, and not only the general public, but even most lawyers have been led to believe that the effort to extradite Eno was a mere farce, if not worse. The New York Evening Post, after very proper and intelligent discussion from time to time of the question of common law forgery, and having presumed that though that was a question in the case it was the only question, misleads a whole community, at the expense of some reputable people, by speaking of the solemn request of our government for the extradition of Eno, and of the dignified proceedings of the Superior Court of Quebec, as "the bare-faced attempt to get hold of him in violation of the extradition treaty," and again of "the desperate attempt to kidnap him under the forms of law" and of "the evident bad faith of the attempt" "to evade the provisions of the treaty." It may be explained, in the first place, that the public prosecution of Eno was not begun in this county by the bank of which he had been president, nor by any of its officers, but was the direct result of the charge made to the grand jury at the opening of the June Term by the presiding judge, calling their attention to this particular case and exhorting them to do their duty in respect to it. No prosecutor appeared, but the

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grand jury, with the assistance of the district attorney, made an examination of all the transactions of Eno, and finally brought in indictments, one for forgery in the first degree, and others containing counts for forgery in the second and third degrees. It was upon these indictments and the copies filed in the executive departments at Albany and Washington, that the request for extradition was made by our government, and upon nothing else.

The indictment for forgery in the first degree was that Eno "forged a certain check for $95,000; this check was what was known as a "Cashier's check," having those words printed on the margin and waterlined in the body, and was drawn upon the bank to the order of Dyett & Co., and signed "Jno. C. Eno, President." This check was upon its face to all intents and purposes the check of the bank, made and purporting to be made as the act of the bank, and in a third person's hands binding upon the bank without more; it may be said that it was equivalent to, and purported to be, a writing executed by the bank as a corporation, as though the signature had been "The Second National Bank of New York," or the same by "Jno. C. Eno, President," or as though the writing were sealed with the seal of the corporation without any signature; it was one of the usual modes of executing a writing by a corporation.

The grand jury were advised that if the accused so executed this writing without authority and with intent to defraud, the act was forgery. The distinction between this case and that of People v. Mann, 75 N. Y. 484, is a narrow one, but it is believed that the distinction can be maintained, even if the provisions of the Penal Code were identical with those of the Revised Statutes under which that case arose. However that may be, it was not contested before the Canadian court, whether the act was forgery here, but whether it was forgery in Canada at the time of the Ashburton treaty or since.

Now on this branch of the case considerable evidence was produced, but it will be sufficient to bring out the point to say that the prosecution proved that the accused resigned his office in writing on May 13th last; the exact time of the day could not be directly proven, and no proof was produced as to this fact by the defendant, although of course he could establish it to a certainty; but at no time during the day of May 13th did he come to the bank; at a comparatively early hour on that day the cashier and the brother of the accused, on the suggestion of the brother, went through the books of the bank to ascertain, not if there was a defalcation, but the exact amount of a defalcation already known to the brother to exist, but until that time not known to the cashier; the circumstances led to the inference that this knowledge was due entirely to a confession made by the accused the night before, as the newspapers stated at the time, or in the early part of the day of the 13th. This check for $95,000 bore date May 13th; it was executed on that day, or on the following day, the 14th, when it was presented to the bank for payment. The bank directors had a meeting on the night of the 13th to consider the defalcation, and it was at this meeting that the whole deficit was provided for; but no one at this time knew any thing about this $95,000 check, nor was it even heard of until the morning of the 14th when it was presented, and caused such a commotion among the directors and the bank examiner as came near closing the bank.

Not to detail all the circumstances, it was urged that it was a question for the jury and not for a committing magistrate whether the accused executed the check before or after his resignation. This matter the judge took upon himself to decide in favor of the accused, and weighed the evidence which was such as

would have justified a jury in coming to a different conclusion.

This action of the judge was contrary to every precedent, but it is enough to cite the rds of the court in another extradition case in Canada. "In cases aris ing under this Extradition Treaty if the evidence presents several views on any one of which there may be a conviction, if adopted by the jury, the court will not discharge the prisoner but will direct extradition. Queen v. Gould, 20 C. P. 154.

But Judge Canon supported his opinion by such reasoning as this: "Les directeurs de la banque ont au reste payé ce cheque après l'avoir examinê, l'on doit naturellement presumer que ce n'est qu'après avoir été convaincus qu'il était exact a tous egards;" the truth being in evidence undisputed, that the directors absolutely refused to have the check paid by the bank, or to have any thing to do with it; that the bank examiner then threatened to close the bank unless some boay took care of this check, and it was then that Mr. Eno, Sr., and Mr. Phelps guaranteed that they would ⚫take care of the check and pay in the amount of it to the bank.

This point was regarded by Mr. Justice Caron, the magistrate who heard this case, as of considerable importance, for in his decision discharging Eno he says: "Si elle (the prosecution) avait raison quant à ce fait, dont il est facile de concevoir tout l'importance, puisque si ce cheque avait été signe par l'accusé comme president, après sa resignation, ce serait un faux (forgery) à n'en pas douter, j'adopterais sans le moindre hesitation les conclusions de la poursuite.

But the main contention of the prosecution, which applied also to this indictment, though with more force to the others, was one in view of which the effort to extradite Eno was mainly undertaken by the district attorney. It was a new proposition, never passed upon by the courts, but regarded by lawyers of eminence in Canada and in this State as sound.

It is to be assumed in the first place that the executive government of Canada has now, and has always had, the power to deliver up to a foreign State a fugitive charged with having committed a crime in the jurisdiction of the latter; and this, independent of any treaty made or statute enacted by the Imperial government, though not of course in contravention of an existing statute.

It was so held In re Fisher (1827), S. L. C. A. 245, before either the Jay or Ashburton treaties were in force (see Clark's Crim. Law of Canada, 24); and this right is expressly asserted by the preamble to the Canadian Extradition Act.

in Canada," the judge shall commit the fugitive,

etc.

The "second schedule" bears the following heading, viz.: The following list of crimes is to be construed according to the law existing in Canada at the date of the alleged crime whether by common law or by statute made before or after the passing of this act;" and in the list of crimes is specified, "forgery, counterfeiting or altering, or uttering what is forged, counterfeited or altered. * * * Any offense under the act passed in said year (1869), entitled, An Act respecting forgery," etc.

Here therefore is an express enactment of a government possessing full power over the matter, directing that a fugitive shall be held for extradition when it appears that the crime, if committed in Canada, would have been one of those mentioned in a certain schedule or list of crimes; and that the crime is to be construed, not according to the English law as it existed at the time of the treaty, but according to the law existing in Canada when the crime was committed, and whether then existing at common law or by statute. The case then presented to the judge in the Eno matter was not confined to determining whether a common-law forgery had been committed, but whether one of the offenses named in the second schedule had been committed, that is, an extradition crime. And if it were denied that the act intended to allow extradition to the United States of one who had committed an offense named in the schedule but not named in the Ashburton treaty, although there is nothing in the act indicating such a limitation, still as to every offense falling, or claimed to fall, under any one of the general crimes named in the treaty, this act expressly declares what shall constitute such offense. That is to say, the act declares that the "forgery" for which extradition shall be granted is whatever act or acts are made "forgery" according to Canadian laws in force at the time the act is committed. There is no lack of judicial authority in support of the principle contended for; in the case of Phipps, on a demand from the United States for extradition (Ont. App. 617), Mr. Justice Armour says: "In framing the treaty (Ashburton's) the parties to it were not providing for the past and present but for the future; and I do not think that the treaty should be construed as referring only to what was understood to be forgery at the date of the treaty, but that under the general term forgery, every thing was included which was in the nature of forgery, and which thereafter might be held to be forgery at common law by the decisions of the courts, or might be declared to be forgery by the statute law."

This entirely explodes our newspaper law, founded upon the reading of one case like In re Windsor, that extradition, from Canada at least, must be for a crime

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By section 1 of this act it is provided, "that the term Extradition Crime' may mean any crime, which if committed in Canada * * would be one of the crimes described in the second schedule of this act;" and by section 13, "in the case of a fugitive accused of an extradition crime, if such evidence is produced as would, according to the law of Canada, subject to the provisions of this act, justify his committal for trial, in case the crime had been committed

the time of the treaty. If that ever were the law, it is now ancient history as to the question under discussion, for the Windsor case was decided some years before the English Extradition Acts of 1870, and 1873, which it would seem have declared the same rule to obtain in England that is claimed by the prosecution to exist in Canada. By the English Act of 1870 it is provided that the "extradition crime" shall be one of the offenses mentioned in the schedule to that act (section 26); and that if the evidence would, "according to the law of England," which means the present existing law of England, justify the committal of the accused if the crime had been committed in England. then the accused may be extradited (section 19); the schedule to this act specifies the offense in question as "forgery," altering, etc. 33 and 34 Vict., ch. 52.

But by the amending act of 1873 (36 and 37 Vict., ch.