N. Y. Supreme Court.-In the matter of Nicholas Lucien Metzger. rests alone with the Executive depart ment. The inference from that debate and its results, is as fair, perhaps, as any other, that the majority of Congress who went with him on that occasion, and in the language of Judge Story," put the question at rest forever," intended to sustain that as well as the other principles which he then advanced. Mr. Marshall maintained that, a treaty providing for the surrender of fugitives being made, the Executive was competent of itself, without judicial or legisla. tive aid, to execute it. How far he is competent without legislative aid, has already been shown from authority, upon principle and by the action of the Government for 50 years. And the U. S. Supreme Court, in the case of Holmes v. Jennison, 14 Peters, and more recently on the application of Metzger for a habeas corpus, have recognised the necessity of judicial action. But then the questions recur, whence do the judiciary derive their authority to act in the matter? Who is to set them in motion, and what is to regulate and control the form and manner of their going? And how are the rights of the accused to be protected? These are important questions under our state constitution, which declares that no man shall be deprived of any of the rights or privileges secured to him, unless by the law of the land or the judgment of his peers. The learned judge, upon whose warrant the prisoner was committed, evidently has strong doubts upon this subject, though he thinks them capable of a satisfactory solution. But the solution which he discovers is applicable only to courts of the U. S., not to the Judges acting out of court, and he seems to have overlooked the distinction which the Supreme Court have since rendered so important, as on that ground to deny to the prisoner the privilege of having his case reviewed in the Federal courts. Under that decision, I am not at liberty to disregard so grave a distinction, and am compelled to inquire, if, perchance, the courts have the power, does it follow that the judges out of court possess it also? If so, whence does it flow? Not from the constitution, for that is silent on the subject-not from the treaty, for that is equally silent-not from any express statutory enactment, for the want of that has been throughout the whole case the great ground of complaint-and not from necessary implication from any power otherwise granted. It seems to me, then, that it can trace its origin to no other source than the necessity or convenience of the case.When we are brought to this point, then, the whole course of reasoning on which was founded my decision, that the police magistrate acted without authority, becomes equally applicable to the District Judge. In the absence of any provision of the constitution, of the treaty or of the statute, conferring the power upon that officer, I am compelled, by the view which I then took of the case, and which was acquiesced in on all hands, to arrive at the same conclusion as to his power. It is with unfeigned diffidence, and after long consideration, that I have imbibed a view of this case, so different from that entertained by the learned judge whose decision I am compelled, from my position, thus to review. His long experience and the high respect which I entertain for his judicial character, might have inclined me to yield my own conviction to his, if his own opinion of the power of the United States Court, had been clear and decided, or if he had at all considered the power of a judge out of court; a distinction, I repeat, which has been rendered important by the subsequent decision of the Supreme Court of the United States. There is another view of the case which has had its weight with me, and that is the mode of reviewing the decision of one of the federal judiciary, which is thus brought about. Such review is not ordinarily through the state tribunals, yet I see no way in which it can be avoided in this case. I was bound by the law of the sovereignty whose minister I am, under severe penalties, to allow the writ of habeas corpus. It was to the prisoner, under our laws, a writ of right. The United States Supreme Court having denied to him the privilege of carrying up the decision of the District Judge directly for their review, he had N. Y. Supreme Court.-In the matter of Nicholas Lucien Metzger. a right to resort to the state tribunals as the conduit through which he can more indirectly pass to that ultimate tribunal, whose peculiar province it is to pass upon all questions arising under treaties made by the authority of the United States. The writ being returned before me, it was my duty to inquire into the cause of his detention, and that not merely as it appeared on the warrant by which he was held, but as it might appear from any fact alleged before me, to show that his imprisonment or detention was unlawful, or that he was entitled to his discharge. 2 Revised Stat. 569, § 50. I have therefore, of necessity, gone behind the mandate of the President and inquired into the legality of the foundation on which it rested. And finding it to be wanting in the legal aliment necessary to support it, I have no alternative but to declare that the prisoner cannot lawfully be held under it. It will be observed, that I have in this opinion omitted to discuss many of the points raised before me on the several arguments, which have been had in the case. This omission has not arisen from any want on my part of attention to and careful consideration of them, but solely from the belief that their consideration was not necessary to the determination of the case, on which I was to render my judgment. There is, however, one topic, on which I differ in opinion with the learned District Judge, which strikes me with so much force, that I cannot forbear dwelling a moment upon it. court, in United States v. Percheman, 7 Pet. S7, when it was said that the treaty was drawn up in the Spanish as well as the English language. Both were origi nals and were unquestionably intended by the parties to be identical. The Spanish had been translated, and they then understood that the article (of the treaty,) as expressed in that language, was that the grants "shall remain ratified and confirmed," &c. The court then holds, that if the English and Spanish parts can, without violence, be made to agree, that construction which estab lishes this conformity ought to prevail. No violence is done to the language of the treaty by a construction which con. forms the English and Spanish to each other. Although the words "shall be ratified and confirmed" are properly words of contract, stipulating for some future legislative act, they are not neces sarily so. They may import that they shall be ratified and confirmed by force of the instrument itself. When we ob serve that in the counterpart of the same treaty, executed at the same time, by the same parties, they are used in this sense, we think the construction proper if not unavoidable. To apply that principle to the case in hand. The convention with France, under consideration, is drawn up in the French as well as the English language. In the latter language, when the party to be surrendered is spoken of, he is twice spoken of as the person "charged” and twice as the person "accused." In the French counterpart, the expression is The Spanish treaty, which has been al- uniformly accusé: "les individus accusés" ready alluded to, contained a stipulation" les individus qui accusés”—“les indi as to the ratification and confirmation of vidus qui seront accusés”— "L'individu certain grants of land therein mentioned. ainsi accusé." The English side of the treaty contained in that regard, the words "shall be ratified and confirmed." The United States Supreme Court, in construing those words in Foster v. Neilson, 2 Peters, 253, held that they imported a contract to be performed at some future time, and therefore, as has been already men tioned, required legislation before that part of the treaty could become a rule for the courts. That treaty again came before the It appears from the opinion of the learned district judge, that it was claimed before him that this French phrase was equivalent to the term in our law indicted or arraigned, and that it was proved before him that such is the understanding of the term by the bar and the courts in France: inculpe and prevenue designate persons against whom criminal charges or proceedings are instituted up to the period when the charges are acted upon by the Chambre des mises en N. Y. Supreme Court.—In the matter of Nicholas Lucien Metzger. accusation, and an accusation is decreed | plexion of the act, whether forgery or by it, and then and not before they be- not, rests in a great measure, if not Code d'inst. Crim. Arts. solely, on the charge of the complainant. come accusees. 127, 128, 241, 265. So, too, under our law, it is often difficult to define the boundary between breach of trust and constructive larceny between mere fraud and the felony of obtaining money under false pretences. And when we come to the exercise of so important a duty as the surrender of a native or naturalized citizen to the de a foreign judicatory, shall it depend on the complexion which the anger or malice of the complainant may give to the case, or shall it obtain its hue from the investigation which the grand jury or the Chambre de Conseil may subject it to? These inquiries are too important to have escaped the attention of the contracting parties, and hence we find a phrase, having a definite meaning in the French code, entirely inconsistent with the idea of allowing so important a consideration as extradition to rest upon the color which the complainant may give the matter, purposely, repeatedly and carefully used, in a manner, which, under our law, gives it controlling influence over both parties of the treaty. So that a person demanded of the French Government by ours, would not be surrendered, unless he had been indicted or mis en accusation. At all events, the French Government might so act with great propriety, and point to the language it had carefully used in the convention as a perfect answer to the demand. The same question, then, arises here that arose under the Spanish treaty, which language is to prevail in the construction? If the English, then a party, merely "charged" or "accused" before the committing magistrate may be demanded. The prisoner is in that precise situation. He has been charged or ac-mand of a foreign nation, to be tried in cused before a magistrate authorized to arrest, and nothing more. But if the French phrase is to prevail, then the prisoner does not come within the treaty, because he has never been indicted or arraigned, never been mis en accusation. There is a great difference in the French practice, as well as in ours, between a person merely charged with a crime and one who has been indicted; between inculpe and accusee. There is much more solemnity in the latter than in the former, more probability of guilt; a farther progress toward conviction has been attained, and the questions both as to the guilt of the prisoner and the nature of the offence, no longer rest merely upon the untried and uninvestigated complaint of a party, but have been investigated by the proper tribunal, the grand jury or the Chambre des mises en accusation, and probable cause for the accusation been duly found, and the nature of the offence charged duly defined. This is an important consideration, for it is not every offence with which a person may be charged, for which he can Entire reciprocity was evidently aimbe surrendered. It is only a few speci- ed at by both parties, and I cannot confied cases, and it often becomes an ex-ceive a reason why the language of the tremely difficult question for courts, even after the fact is established, to ascertain the nature of the offence growing out of it. In this case, it is very difficult, if not quite inpracticable, for an American lawyer to determine whether the act charged upon the prisoner was forgery under the French law. If the matter had passed through the Chambre des mises en accusation, and the prisoner had been mis en accusation, had become accusee, it would have been judicially deter- If this construction is to prevail, then, mined that if the prisoner had done the it is inevitable that the prisoner is not acts imputed to him, it would constitute within the treaty, and cannot be demandthe crime of forgery, but now the com-ed by the French Government, nor sur Supreme Court, in regard to the Spanish treaty, does not apply here with equal force, and why I am not bound to hold, as the Supreme Court then held, that if the English and French parts can without a violence be made to agree, that construction which establishes this conformity ought to prevail, and that no violence will be done to the language of the treaty by a construction which conforms the English and French to each other. Surrogate's Court.-In re accounts of Executor of Scott. rendered by the American, but is entitled to the protection of the laws of this state against the attempt to surrender him. H. M. Western, for legatees. THE SURROGATE.-The executor submitted his final account of proceedings, The conclusion, then, at which I have including also a personal claim against arrived is, that the prisoner is not a party the estate of the testator for allowance accused-mis en accusation-within the and settlement. The residuary legatees, meaning of the treaty, and that the Pre- the widow being now deceased, contestsident cannot execute the power of extra-ed both the account and the claim; and dition without both legislative and judi- the proofs having been taken before me, cial sanction, and I acknowledge that I am now called upon to decide the matthe conclusion commends itself to my ters in controversy. . favor, because of the protection it is calculated to afford to personal liberty against Executive authority. The prisoner must therefore be discharged. Surrogate's Court. [New-York City.] Before the Honorable CHARLES Mc'VEAN, IN THE MATTER OF THE FINAL SETTLE- DECEASED. An executor has the authority to compound and re- nor impairs the right to sell-it merely makes it The authority of the executor to sell every species of personal property of the estate, is co-extensive with that which the testator possessed in his life-time. It seems that in case an executor sells a debt due to the testator, prudently and in good faith, he is accountable only for the amount he may have received for such debt, being less than the whole sum. The promise to pay, implied from valuable services rendered, must be answered by satisfactory affirmative evidence that they were gratuitously rendered, before the right of a claim can be defeated. THE circumstances of this case sufficiently appear in the opinion. P. Reynolds, for the executor. The testator, by his will, gave the use and interest of all his property to his wife during her life-time, and so much of the principal as might be necessary for her support. The property which the testator left, was a judgment for $985 36 against Jane Hays, recovered a few days previous to his death. A few days after his death a bill in chancery was filed in the name of the executor in aid of the recovery of that judgment, by the attorneys of the testator, in which bill several other creditors of Jane Hays were parties, and which was filed with out consultation with the executor. All the creditors afterwards settled the suit, some receiving more in proportion than the others, each having made a separate settlement. The amount recovered by the executor was $600 and the costs, and the judgment was assigned to a friend. The propriety of this settlement has been questioned, and the evidence of the counsel of the parties in that controversy, and of others, have been taken on this hearing. As a matter of fact, I am satisfied, considering the litigation that would ensue, the prosecution of that bill before the debt could probably be recovered, and the poverty of the estate of the testator otherwise; that the settlement was made prudently, in good faith, and that the best interests of the estate were thereby promoted. The question has been raised, whether a debt due his estate or to sell it, and if an executor has the authority to release he has so released or sold the same, whether he be not liable for the whole sum of the debt in his account. The counsel for the executor has referred to the 25th section of the statute (2 Rev. Statute, p. 87, 1st ed.) as affording the authority of the executor to sell in this instance. Surrogate's Court.-In re accounts of Executor of Scott. The mode in which the composition was affected, cannot change the result. The assignment of the debt-to a friend of the debtor, was preferred to a release of it, and the estate lost nothing by the assignment, more than it would have done by the release. I do not mean to intimate an opinion, that an executor who assigns a chose in action belonging to his estate for a sum less than is due from the debtor, is held to account for a sum greater than he receives. If the estate lost nothing by the transaction, it is inequitable that he should account for more than he has received. The legal right and authority of the executor, as the successor and personal representa. tion of the deceased to sell, is unques The provision is as follows: "If any executor, &c., shall discover that the debts against any deceased person and the legacies bequeathed by him cannot be paid and satisfied without a sale of the personal property of the deceased, the same, so far as may be necessary for the payment of such debts and legacies, shall be sold." This provision confers no au thority upon the executor to sell, neither does it restrain him in the general right to sell any portion of the personal property. The authority of the executor to sell, is now as full and perfect as it was before that statute was passed. It is his duty to sell in the cases mentioned in the statute; but it was not designed to restrain him in his right or power to sell in any case. Neither can that section betionable to the extent that the law would construed as recognizing the right to sell the debt due the testator as "personal property" required to pay debts. Although "personal property,' as used in another chapter of the Revised Statutes, would include choses in action. As used in this section and chapter, "personal property" means personal property at common law. allow the testator to sell, and such sale having been made in good faith, prudently and discreetly, with reference to the condition and interests of the estate, I see no reason why he should, in equity, be held liable for more than he has received, in thus doing an act tending to promote the best interests of the estate entrusted to his care and management. The authority of an executor to com- As regards the debt of the executor pound and release a debt has never been against the estate, which is for medical questioned. It has been contended, how-services and attendance, it is satisfactoover, that on a trial at law, on a devastavit, he would be held accountable in all cases for the amount of the debt released, regardless of the amount received. The rule was always otherwise in equity. It is useless to inquire whether the rule at law, as contended for, ever existed, as this court in this matter proceeds on the principles of equity, which are the principles of the law itself as now modified by the Revised Statutes. Even if the rule existed now, at law, it is a mere relic; for a court of law can, in no case, issue an execution, except on an order of the surrogate's court, on adjustment of accounts in the latter court. An executor is not only bound to compound and release a debt when the interests of the estate require it, but he would be guilty of culpable neglect if he should fail to do so and lose the debt. He is bound to act in such case as a discreet and prudent man would act, were the debt his own. 3 P. Wil liams, 381, 1 Wendell R. 583. rily proved that he was the family physician of the testator; thathe as such, attended him for several years, for which he had not received any pay. These services being valuable, the law presumes a promise to pay. It is competent, however, for the opposing party to show that the services were rendered gratuitously. Some expressions of the executor of an equivocal character have been testified to, showing that he did not intend, or did not expect to receive payment for his professional services. These expressions are met with the proof of the declaration of the testator, regretting his inability to pay. It is manifestly just that the executor should have compensation for his services as a physician. There is some uncertainty as to the amount, but all the circumstances of the case authorize me to subtract something from the account thus rendered by him. I do therefore award him $150. Costs to be levied, and not to be awarded to either party. |