The New York Herald Newspaper, December 29, 1853, Page 3

fC Known. She wil) be 90 feet long, 21 wide, 7 deep, and is to have a single beam engine. MB. GEORGE COLLYER, Launched. Jn April—The steamboat George Burbeck, of 400 tons, for harbor duty. :. October 24.—The steamboat Bay City, for @alifor- nis, of 500 tons. She was fitted with three masts, and left here about the 3d ult., for San Francisco, un- der canvass, with her farniture on board. On the Stocks. Two schooners of 300 tons each, for the coasting trade; 110 feet long, 29 beam, and 9 deep. One is for Mr. Charles Clarke, of Jersey city, and the other for Oaptain Woolsey. MR JEREMIAT SIMONBON: See ais gaara seed March 10.—Commodore Vanderbilt's North Star, of 2,500 tons; now laid up at the Atlantic weeoliaais Clifton, of about 700 tons; running, we believe, to Elizabeth Point. On the Stocks. A steamboat of about 2,000 tons, for the Stonington Une; 300 feet long, 41 wide, and 13 deep. Will have a large single beam engine from the Allaire Works. ‘Will cost from $240,000 to $250,000, ‘MB. GEORGE STEERS, Launched. During the year, Mr. Steers has launched the pro- peller Vaquero, of 350 tons, tor the Cuban trade, and owned in Havana; also, a side-wheel steamer of 200 ‘tons, owned in Cuba; the schooner Pride of the Se, of 250 tons, for Fox & Brothers; a schooner yacht of 105 tons, for Mr. Duncan, of the firm of Duncan, Bherman & Co.; and a sloop yacht of 35 tons, for Mr Bay. The last two vessels were modelled after the celebrated yacht America. MR. JOHN ENGLISH. On the stoc: A eteamboai of abot 900 tons, for the Portland and Boston business; 243 feet long, 32 wide, and 12 deep. An engine with a 50-inch cylinder, 12 feet stroke, is being built for her at the Neptuce foundry. Also, a steaxboat of the same size, for Messrs. San- ford & Sons. Mr. English is als> building at Buffalo two steam- ers, 2,000 tons each, and 340 feet long, to ran be- tween Buffalo and Detroit. Mr. E. has not launched anything at this yard, having but recently commenced. MESSRS. ROOSEVELT & JOYCE. Launched. In April—Schooner T. A. Ward, of about 300 tons, for the Wilmington trade, owned by Freeman & Houston. Oct. 8—Clipper sbip David Brown, of 1,750 tons, for the California trade—now on her first voyage to Ban Francisco; owned by A. A. Low & Brothers. Nov. 12—Clipper ship Rapid,of 1,050 tons burthen, owned by Jas. Bishop & Co. On her first voyage to London. On the Stocks. A three-masted schconer, of about 600 tons, for A+ A. Low & Brothers. She ia 130 feet long, 32 wide, and 18 deep. Designed for coasting. Also, a schooner for coasting ,of about 400 tons, for Freeman & Houston. She ia 110 feet long, 28 wide, and 9 deep. WILLIAMSBURG. MESSRS PERINE, PATTERSON AND STACK. Launched. Jan. 10.—A large sloop called the Mary Ann Lake, of about 80 tons, owned by W. Lake and Brother, and employed in the stone trade. Jan. 25.—Ferry boat Eagle, for the Roosevelt and Bridge street ferry. Jan. 31.— Ferry boat Osprey, for the same com- Pant. 12. —Ferry boat Curlew, for the same. They rate about 400 tons each. Mesers. Pease & Murphy fornished the machinery for the whole. April 2.—Clipper bark Flying Cloud, of about 350 tons, for Harbeck & Co. Now in the Angostara trade. May 10.—Schooner Fidelia, of about 75 tons, for B. Blanco. Employed in the South American river ‘wade. June 22.—Bark (or three masted schooner) Helcise, of about 375 tons, for Captain McKeige; now in the Australian business. July 2.—Clipper ship Wide Awake, of about 900 tons, for Siffkin & Ironsides, for the California busi- ness. She is 167 feet long, 31 wide and 18 deep. This firm also launched in the latter part of the year, a bark of 300 tons for D. Curtis & Co., for the Carthagena and Savanilla trade, and a brig of 325 fons for M. M. Freeman & Co. ‘The firm has since been dissolved, each of the partners now carrying on a separate business, Mr. | Perine has removed on to spacious piece of ground | atGreen Point, where he has erected a number of fine buildings to carry on his business; Mr. Patterson retains the upper of their once joint Williamsburg yards, and Mr. Stack has the lower one. The ves- | eels previously noticed on the stocks of the joint | firm, have been variously continued, and will be | found farther neticed under the name of one or | other of the partners. | The finishing of the steamship Yankee Blade, which left on the 20th ult., on her first voyage to Aspinwall, was completed by Messrs. Perine & | Stack, who Isuncbed her on the 10th of November. | Bhe is 2,000 tons burthen. MR. ARIEL PATTERSON, Launched. | July 23—Brig Bonita, of 300 tons, for the South | Anterican trade. Dec. 13—Clipper schooner Lady Jane, of 200 tons, for Sen Francieco. On the Stocks. Ship Wm. Layton, of 1,000 tons, E. D. Hurlbut & | Co. She is 150 feet on the keel, 30} beam, 23 deep. Will be launched immediately. Two ships of 1,000 tons each, and of about the same dimensions, for E. 0. Hurlbut & Co. One will | be launched in about three or four weeks; the other | is in frame, and partly planked. Also in frame, alarge ship of 1,900 tons, for 3. Thompson & Nephew’s Black Star line of Liverpool packete. She is 215 feeton deck, 29 feet beam, and | 43 deep. Another large Liverpool packet ship of 1,900 tons has just been commenced for D. & A. Kingland & Suttom. Her dimension will be about the same ag the ship for Thompson & Nephew. THOS. STACK. Launched. Dec. 5.—Sohooner St. Mary, of 200 tons, for the | Maracaibo trade. Owned by William Lake & | Brother. On the Stocks. A bark of 400 tons, for M. M. Freeman & Co. Her length is 120 feet; beam, 274; depth, 124, A three-masted schooner of 470 tons, for {W. B, Whitehead. Length, 140 feet; beam, 31; depth, 124. A bark of 550 tons, for Wakeman, Dimon & Co. Length, 140 feet; beam, 33; depth, 184. GREEN POINT YARDS. MR. WM. PERINE. On the Stocl:s. A brig of 400 tons, for Harbeck & Co., for the An- Bostura trade. A ship for the same firm, of 750 to business. Leigtn, 150 feet; width, { 21 fect. Bhip Calvin Adams, of the same tonnage and di- mensions; for general business. Ship J. H. Ryerson, for Hurlbut’s Rambnrg line, | for general | feet; depth, of 1,000 tons burthen; 163 feet long, 36 wide, 23 | 3 Norris & orrrrrrng, On the Stocks. The steamer Wm, Norris, of rout 800 tons, to run between Newfoundland and the wost coast ‘of i Jand, in connection with the Provincial telegraph, This is @ new firm, and has launched nothing as yet, BNEDEN & WHITLOCK. Launched. and now running between Portland and Bangor. Machinery built by J. E. Coffee. March 31.—Propeller Westchester, of 330 tons, running between New York and East Haddam. Machinery by Hogg & Delamater. In September—A propellor of 350 tons, for the trade. FEE On the Stocks. The large steamboat of 2,000 tons, for the Fall River trade. From her forward state she will pro- bably soon be launched. MB. ECKFORD WEBB. Lawnched. Feb. 1.—Steam ferry boat Ellen, of about 200 tons, for the Catherine and Bridge street Ferry Company. March 10.—Steam ferry boat Lonise, of the same dimensions, and for the same parties. The machi- nery of both boats was from the Novelty Works. May 24—A steamboat for the Hudson River Railroad, of 315 tons. June 29.—Steam tug Leviathan, of 560 tons, owned by Messrs. Spofford, Tileston & Co.; has. a very power- fal engine for her size, with a cylinder of 60 inches in diameter and 10 feet stroke, from the Allaire Works. The tonnage of the above is government measure- ment. On the Stocks. A clipper ship of 950 tons, for Wakeman, Dimon & Co. She is 163 feet long, 32 wide and 20 deep. MBSSRS. LUPTON & MCDIARMID, Launched. In November—Mr. William W. Vanderbilt's steamer, of 700 tons, for Lake Pontchartrain. She is being fitted with a vertical beam engine from the Neptune Works. Dec. 20.—Steamer Adelaide, of about 600 tons, in- tended for the river trade in California. MR. JABEZ WML LIAMS. Launched. In May.—A schooner of 350 tons, for Mr. Hunter, in the Petersburg trade. Oct. 23.—Schooner Fanny, of 350 tons, for the Charleston trade; owned in Charleston. MR, J. T. WILLIAMS. Launched. Dec. 15.—Clipper schooner Kate Brigham, of 600 tons, for Dunham & Dimon’s New York and Savan- nah lize. MR. BDWARD WILLIAMS. Launched. In the early part of the year, the pilot boat Elwood Walter. of about 90 tons, for the pilots of the pilot boat Yankee, which was lost last winter in the bay. ss On the Stocks. A bark of about 600 tons, and two schooners of about 300 tons each, for parties unknown. MR. HENRY BARCLAY, Om the Stocks. A schooner of 150 tons, for the Spanish govern- ment. Mr. B. has launched nothing this year, hav" ing but recently commenced at Green Point. HOBOKEN YARDS. MESSRS ISAAC C. SMITH & SON, Lavwnched . March 17—Steamer Cornelia, 240 tons, for Wilson Small, for the river trade. Machinery from Mr. Small’s foundry. March 23—Towboat Walter B. Crane, of 100 tons, for Thomas Cornell, of Rondout. Engine by G.& J. Burbeck. April 6—Steamer Anglo Celt, of 405 tons, for par- ties in New Orleans, for towing. Machinery by Cun- ningham & Belknap. May 6—Barge James Cogswell, of 200 tons, for J. P. & Thomas Cumming. May 28—Three-masted clipper schooner Gardiner Pike, of 330 tons, for 8. C. Nelson and others; in the coasting trade. In October—Clipper ship Gravina, of 909 tons, on her first voyage to China. She is owned by M. Loring, of Malaga, for which trade she was designed. Noy. 3—Schooner Jonas Sparks, of 284 tons; in the coasting business. Owned by Mr. Jonas Sparks and others. Dec. 28—Sloop Nondescript, of 60 tons; owned by the bullders. The usme is indicative of some new peculiarities in her model. On the Stocks. A steamboat for the Middleton and Shrewsbury Transrortation Co, of 350 tons. She is 165 feet Jong, 25 beam, and 7 deep. Her model is different from all other river boats, the particular featares of which we described a little time back, the chief ob- ject of the model being light draft. Asmall clipper ship of 460 tons is in frame, de signed for the South American trade, and owned by parties in this city. She is 130 feet long on the keel, 28 beam, and 12 deep. MESSRS. CAPES AND ALLISON, Launched. In the early part of the year—Steamboat Austin, for Captain Austin and others, of Albany, of 560 tons; steamboat Only Son, for Captain P. C. Shultz, of 140 tons, for harbor towing—engine by G. & J Burbeck; and sloop Abraham Cosgrove, of 85 tons, for M. 8. Allison. Aug. 13.—Three-masted schooner J. H. Chad- bourne, of 400 tons, for J. D. Harris and others. Aug. 20.—A propeller, of 300 tons, for Shaw & Whiteridge, of New Bedford. On the Stocks. A schooner, of about 320 tons, for Cook & Co., in- tended for the Southern trade. Length of keel, 105 feet; beam, 30 feet; depth, 9}. Also on the stocks, a scow, of about 50 tons, to be fitted with a steam spile driver. NUMBER AND TONNAGE OF VESSELS LAUNCHED IN NBW YORK IN 1853, Sailing Total Vessels. Steamers, tonnage. Westervelt & Co. 5 3 ‘ Wm. H. Webb. 6 4 14.457 - CO. Bell. . 2 0 2,500 W. H. Brown 0 1 1,400 Smith & Dimon 0 1 60 Wm. Coli -2 2 1,966 rhe | 2 2,492 0 2 900 0 2 2,200 George Steers. . oo 2 940 Roosevelt & Joyce. 8 0 3,100 Perine, Patterson & Siack 6 3 3,280 Perine & Stack. 0 1 2,000 oe 0 500 ot 0 200 sdeee O 3 1,480 Eckford & Webb... . 0 4 1,275 Lupton & M’Diarmid.... 0 2 1,300 Jabez Williams . «3 0 690 | J.T. Williams. . -1 0 500 Edward Williams . I 0 90 Teaac C. Smith & Son... 5 8 2,529 Capes & Alligon........ 3 2 1,485, Total. . 87 56,644 NUMBER AND TONNAGE OF VESS8LS REMAINING ON THE STOCKS IN NEW YORK. Suiling Total m Vessels. Steamers. Tonmage. Westervelt & Co......... 2 3 5,400 Wm. H. Webb ‘8 t 11,500 A. ©. Bell... .1 0 1,400 Smith & Dimon. 0 1 2,500 William Collyer. 0 2 2/400 Thomas Collyer... ....') 2 i 1,580 George Collyer... oo 0 600 Teromioh Sinohson...... 0 1 2,000 John English... . +9 a 1,800 Roosevelt & Joyce. yy 0 1,08, Ariel Patterson 5 0 6,800 Thomas Stack, 3 0 1420 Wm. Perine. .. 4 0 2,900 Norris & Griifith: 0 a '300 Sneden & Whitlock 0 1 2,000 Eerford Webb. a 0 950 fLdward William 3 0 1,200 Henry Barclay. . ol 0 150 Isaac C. Smith & Sor od 1 810 Capes'& Allison... ., 2 0 370 Total .........6.06.. 684 4 47,580 RECAPITULATION. Number launched in 1853,... + 80 aout Number on the stocks... : 48 47,580 The increase in building since first of July last bas been great, as the following comparative table Jan. 3.—Steamboat Daniel Webster, of 800 tons, Mult lor the Mein; 1096 aviation Cusapauy, ot the unfinished work at that time and at the pra EUG MvUagert, Wadd alayW im J “pestectly.” Apsuming that Mr, Mason, Steamers. Sail’g ves. Tons. On the stocks now.........14 34 47,580 On the stocks July 1, 1853. .12 16 27,325 Increase in six months............++++++20,255 This is s great gain for six months. In addition to this, several vessels will be commenced in afew days, which will likely bringthe gross amount on the stocks, up to fall 50,000 tons. The difference between the tonnage remaining on the stocks at the close of 1851 and 1853, is as follows:— Tons. Amonnt of tonnage on the stocks, Dec. 1851..16,830 Do. do, Dee. 1853 ..47,580 Difference in 1853 over 1851........ tee ee 4 30,750 ‘This shows that the business of our shipyards has nearly doubled in the short space of two years, and affords a very flattering evidence of the rapid exten- sion of the commerce of th® country. THE MASON WILL CASE. Supreme Court—General Term. Decision of Jacge Roosevelt. 28.—Aliion and Wife against George Jones anit others. is controversy in one form or another, has been pending more than thirteen years. The will, which {s the source and subject of it, was, though not without heeitatior, as his opinion shows finally admitted to probate by the late Surrogate in 1840; » decirion, meres after leclared tobe erroneous, and reversed by the Sa reme Court, The reversal being founded on « question of feat, ‘® trial by jury became necessary, and was ordered ssecrilgly, Living resulted uniavorehiy to the alleged vill, a mouon is now ie fora new trial. It is made on the psitaf the Mess: th jaiming un der the instrument, ao len it to be the will of John Mason, ‘The jury, under the charge of the Judge, npon the evidence gave their verdict against the instrument, declaing in substance that it was executed “without knowlecge.”’ and was not the will of the alleged testator. And the question now ia, could they—or could any other twelve impartial men—on the case presented, or en any care likely to be presented, have arrived, or be likely te arrive, at any different cr more favorable recult? If not, » new trial would not only be an idle, but consi- der ing the long litigation already ensountered, an upjusti- fiable, vexatious and expensive ceremony. ‘One general term ef the Supreme Court, a3 we have seen, has already decided, and the decision has been neither reversed nor appealed from, that upon the evidence presented before ‘urrogate and returned to the Judges at that term, the instrument in their opicion was not sufficiently proved to be the will of John Mason. Oa the jury trial whi followed, nearly all the matters, previcusly proved, certaizly all the matters of any importance, were agaili sivenin evicerce, Upon them, and the additional proofs, which not pretenced to have strengthened the case of the will, the jury founc not on\y negatively that the instrament in question was not sufficiently proved, but ‘afli: matively that it was not the will of John Mason. Waat groucd is there, then or according t> the usual prao tice ef the Court, can there be, for what, ifgranted, must virtually be a thirdor rather a fourth trial of che same is- . The counsel (or the supporters of the alleged will rests his motion mainly on the assumption, which he has en- deavored to maintain by argument, that the charge of the judge and the verdict of the jury were not warranted bi the evidence. On reading the instrument iu question, it en that the partisa chiefly interested to uphold ty bore xo relationship by blecd to Mr. Mason, an¢ that the wife of one of them, although s daughter of Mr. Masop, was no longer living; they also admit, as I read the evidence, that Mr. Mason never spoke to th about @ will, and that, om their part, they never ¥ tured to speak to Mr. Marom on that aubject, They, n verthel procured I to be drawn, and dr: by his, butjby tueir lawyer, for a dying man, who shordy before bad himself ‘expressed @ belief that he should not (as he cid not) survive the following day. Aed the question is, in thua interfering to the prejudice of other members of the testator’s family, and among them two sone and a» daughter, end the children of a deceased caugbter, cid they act under instractions given by tha testator? None et are pretended. The aubdstance of the evidecoe on this point—if such dilated hearsay can be called evidence—is, that Mr. Strong, the lawyer who drew the paper, tells the jury that Messrs. Isasc and George Jones told him that Mrs. Rebeoca Jones told them that Mr. Mason told her that he wished a will drawn with all possible despateh. (Folios 97, 109, 110.) Mr, Strong, when asked, “Did they say whether Mr. Mason had himeelf rsonally directed them, or either of them, to get # will drawn for him? frankly answers, “No, they did not; and I under- stood deeidedly the contrary.” He even goes further, and adda, ‘‘It is proper for me to explain that I usder- stocd that the Mesars. Jones had been looking fur me in the afternoon of the day on which I received the instrus- tions from them, and had not found me; th-y told me that after Icoking for and not moe me they had re turned again to see (not Mr. Mason, be ‘it observed, but) Mrs Jonea, and to hear from her the instructions, so that they might not be mistaken in them, and had again got the instructions from her, before they saw me in the evenirg.” Tho bis. Jones referred to, he says, he under: stood afterward: Mrs. Rebecca Jones, the widew of the late Isaac C, 8, and one of the caughters of Mr. Mascn. These inst tions, if given, admitted, were not written by the testator, nor were they dictated by him and taken down and read over to him at the time, or atapy time Nor sfter they had been taken down by Mr. Strong, from the lips of the Mesars. Jones, anda draft will, ‘in great baste,” ae Mr. Strong rays, had been pre- pared from them, (fol. 104 ) were either they or the draft pubmitted to, cr scen by, Mr. m. The draft was the instance of the Messra Jones, in baste, the ening on which the instructions were given; ‘and the next morning (says Mr. Strong) I read it over to them.”? Noalteration was made in that draft—none re- collected by the witness, The will produced was engrossed from it. ‘The result, then, is, that as the Messrs. Jones conveyed the instructions and as Mc. Strozg,as he testifies, “took down the instructions ss they were delivered to him, faithfully and correctly, end drafted the will accordiagly, (that is according to the instructions.) to the best of bis ability, regarding the great haste ia which it was requir. 4 to be done”—the result, I say, is that the Morers Jones ins ructed Mr. Strong in substance to draw precise ly such an instrument as that which is now set up as the last will and testament of John Mason. What, then as thus ascertained by the er; instrument iteelf, faith- fully and correctly drawn according to the instructioas— what, I say, did the Mersrs. Jones, ane other {hinge direct Mr. Strong, their lawyer, todo? They instruct Mr. Strovg, in ¢rawiog the will, to insert a provision, giv ing—fer, although expressed with some circumlocu- tion, that is its admitte1 purpose and legal effect—to Mr. George Jones, the husband of a deceased daughter, one full share of Mr. Mason’s real estate for life, and one full share of his persoral estate forever, to be taken, more- over, from the testator’s own blood,to whom otherwise it would legally and naturally heve gone, ard by a complex will to be transferred to one who, without {t, by the law of the land. was entitled to receive, and would have re ceived nothing. Does any one believe, or in the ab sence of the most positive proof, can any one believe, that Mr. Maron, on the afte:noon before he diod, or at apy time, dio’ated te Mrs. Rebecea Jones, or toanybedy else, instructions, comprehending, among other things, such « disposition of entate? Did Mr. George Jones himself, although about his bedside, and a!- theugh insisting upon the dying man’s perfect’ compe tency up to the moment even of actual dissolution, ven- ture to inquire of this man ‘‘of s:und mind and memory, and good understacding"—(see Dr. Berger's testimony, fols. 16, 22, 68,)—whether such a disposition so unusual, and seemingly, at least, so unnatural, was suggested by bim or was in eccordance with his wishes? He dosa not tend that he did so; on the contrary, it would seem @ never opened bis lips to Mr. Mason’ on the subject, Was it because Mr. Mason was not communicative? Dr. Berger swears that ‘‘he talked a good deal.” Was it be- cause the disease affected the patient's brain? Dr. Berger swears that he pever showad “‘any indications of tem 0 abtrration of mind—never that he, (the doctor,) could perceive.” Was it beoause of physical weakcurs? Dr Berger sgain swears that there ‘was not avy apparent diminution of bis strength during his con- finement,’’ or “not much that he could perosive;’”’ and “po material alteration in his countenance down to the time of his de&th ’ Was it because Mr. George Jones had no opportunity of introducing the rubjeot or makiog the inquiry? Dr. Berger. swears that Mr. George Jones “gat up”? with his patient the last night of his lifs, and 8 present in the rcom when he died.’’ Here, then, was a son-in-law, (the husband of a deceased davghter,) returning, at 8 or 9 o'clock on Wednesday evening, froin the office of his Iawyer, where he had been engaged, we ray m9, for xome considerable time, in giving in- stivctions for and disousring and virtually distating the lwt wili ard testament of Jobn Mason: and among its jones provisions, ‘one disposing, in favor of Mr. George Individually, of between one and two hundred thozsant Gollers—returnieg, I say, from such a consultation about John Mason's ailsira to the bedside of that same Jobn Mason, he at the time, as is contended, in the full possession of all his faculties, bodily and mental, and, if Dr. Berger's § belief” isto be relied on, capable even of understanding “ perfectly” a lonz complex in strument, which, whatever may be the confident opinioa of counsel to the contrary, is somewhat hard.to be under. t during the whole night, with every facility een, for communication, not lisp'ng a syllable Ieative”? old gentleman, about tae important consultaticn, profeseedly om his behalf in which four ork ns (kimsy.f of ths number) had just been engaged. aske ns, aed nade no communisations, isd yivore he whole transaction—at a time, too had it been cowmunteated, Me. Mason e wld have ‘understood it perfectly.” He waited, it would seam, in absolute silence from about 8 o’vloca on Wednesday ove. aing, till nearly noon the next day,when the ang 4 or no 5 Lapel ° 7h Kose “aenced a race with pgth war finisho?, And then, asc the trial very truly expraesed 1 death. Mr. Stroog, t! Mr. Mason on the rub, 0 had never before seen ec eeot tae car iee arried up with the important | go betwoen IL and 12 0’clock on Rilentp ig ate not to submit it to, but to have it ex- pe ioe ¥)? Pe automaton t stator—automaton I ray, for, altnous®. abie to understand the instrament “ psrfectly,’> he “vas treated s4.an automaton by all the actors in the ‘keene. On entering the house, such was the sense of ur. gency with which the Meiers. Jones had impressed him, Mr. Strong, accompanied by one of them, actually ran up ttaira te the efck man’s room, and commenced the reading without s moment's delay. Acad although Dr. Berger, who was protent, dil not, a5 he says, ‘pay much attention,” ard had ‘forgotten whether he, (Mr. png) maade paures in reading it or not,” yet Mr Strong himself, whose memory is better, rays positively, I read the will th ough without pausing”. -'I endeavored tozand I believe 1 did, read the will audibly, correotiy, and distinetly; but atthe rame time having noticed that Mr. Mason ap- peared to labor very mueh in breathing and understan: ing that he was near bis end, [ read it with as much ra- i ity ee I deemed to be compatible with a sense of my luty in reading the wil tohim.”’ At the end of the entire reading, (snd much stress is laid on the circumstance as evidence of his having given the previous instructions, ) Mr. Manon said he understood it ‘perfectly,’ and that it was correct, and ‘immediately’ eet it. and died in less than fifty, I think in lena then Gfteon, minutes there after—Mr. George Jones taking the oustody of the inetra went. But whether these supposed expressions of Mr. Mason were or were not in the form o! mere assents to Toading questions, does not distinctly appens, ex rept that Vy Srong te cor fdent thet We Vv sé ihe word poring him ! uncer said, ever so distinctly, understood” its contents, he obviously uttered an impos. sibility, and demorstrated,as it eeems to me, by the most conclusive evidence, his incapacity to understand it at all. No man, I may sey no lawyer, after such » reading of such an instrument, (never having perused # previous drat) ould aay he understood it perfectly, unless from blind impulse of disordered sanity. The jury to whom it was read, and read deliberately, and who were the proper judges of this uestion, had a right to act oa ir own ledgeot the livary powers of the human istallods, have, in effect, eeld that such an observation by Mr. n, if made, was, in their view, conclusive evi- dence that the dying man in making it, although atiil re- ‘ainibg, to some extent, the power of speech, in fact, am Dr. Rensselaer testifies, knew not what he said. Bvinborne (vol. 1, p 189) speaking of wills made * at ‘the very point of death,’ end where the party ‘doth not of his own accord make or declare bis testament, but at the interrogation of some other, demanding of him whether, &c., answereth, yea, or I do so,” saya, they are attended with difficulty.’ In tome cases it is “to be pre- sumed that{ the testator did answer, yea, rather to de- liver himeelf of the importunity of the demandant, then upon devotion or intent to make his will; because it is for the most part painful and grievous to those that bein that extremity, to speak, or be demanded any question; and, therefore, are ready to wer yea toavy question almost, that they may be quiet: which advan tage crafty and covetous persons knowing very well, are then most bi and ¢o labor with tooth and natl to pro- cure the sick person to yicl: Such an instrument, whe: to importunity, althe ugh he ment.” The jury, in tue case of Mr. Mason, have in effect found “that if he used the expressions attributed to him he used them ‘without knowledge.” And this conclusion, it seems to me, is atrovgly, and, I think, impregnably fertified by the corroborating aad corroborated testimony of Dr Van Rensselaer, who saw the patient and conversed with him about an hour or an hovr and a half before he died, or before he signed the disputed instrument, and who gives us precively wlest cccurred om that occasion, and couclusion from it, formed at the time, that Mr. Mason, whatever, he might have beow before, was not then of sound mind. The tes- timony of the three femalé witnesses is to the same effeat, But thia is not all Dr. Van Rensselaer swears that Mrs. Rebecca Jones came out of the room as he entered, and that the nurse was in, and remained in, during the inter- view; and neither of these persons pretends to contra- dict the doctor's statement, either as to the partionlars of the interview, or as to the precise time when it took place. | Counsel, it ts trae, bave argued, not that Dr. Van nreelear has given a felse version of the interview, but that be bas made, or rather thnt he must have raade, a mistake in fixing the dey of its occurrence, And ara to take argument, or rather mere unsupported sugas- tion, for evidence? And that, too, when the witners. has given us the names or designations of no less than three. may say four, persors to rectify the error of date, if there was one? He says a domestic opened the street door for him—anoiher domestic whom he thea, and thea only, attended, was sick in the attic—a third domestic, acting as purse, was in Mr. Mason’s room, and partici. pated in the conversation—and lastly, Mra, Jones her- self (and her affidavit was admissible on « motion for a new trialon the ground of surprise,) came cut of Mr Maron’s room sa he (the witndss) entered. Not of the four—all living—has ventured to r (or, for sught that appears, has even pplied to for her affidavit,) that there was auy ¢ in the doctor’, peerite ad and yet, on this mo- tion for a new trial, we are ealli pon by counsel, with- out evidence and against evidence, t> assume that “Dr Van Rerassslaer, on whom the Judge relies has mistaken the day of his visit,” and that his testimony, on that ac- count, was ® surprise upon them, No such imagiaary mistake was urged or suggested on the trial. It was ovt thought of then—it is not sworn to ncw. In my view of the evidence taken in connection with the absance of any affidavit, there is no: the slightest color for the sug- gestion, Here, then, on the morning of the 26:h Sep tember, was Mr. Mason, in the language of Dr. Van Rens- to their demanis,”’ &c. THE EXTRADITION CASE, Supreme Court—In Chambers. Before Hon. Judge Mitchell. Dwo, 28,—In the matier of Alexander H-ilbonn, claimed by the Act of Treaty as a Pug pond ey monyye g~ The Judze inquired oe upon @ charge Z, — judge inquired o' United States At og were ready for the decision of the Court im the case of #leilbonn, Mr. O’Conor said he was not advise’ of any change in affairs since yesterday which would induce him to make any furtber remarks. though he might, possibly, the day to-morrow; yet he had no right to affirm that he would. Whatoscurred yesterday bad been properly re- d, and he had nothing further to add now. fle, owever, suggested to the Judge to let the decision stead cver for @ couple of deys. It was not the iatention of the government to blink the question by technicalities, but it was not possible for the United States authorities to discharge the man, should such be the decision of this court. ‘The Judge said--On the whole, I think I may dispose of this matter pow, as the government have intimated their intention of raising the quection before a higher tribunal I had examined the care before the United States Attor- ney appeared in it, and I intend to follow out the views I then formed. The conclusion I have come to ir, that the prisoner be discharged, that the order for his dis- ‘charge be served upon the United States Marshal. The Jucge then handed his written opinion to the Clerk. It is a8 follows:— The pritoner is brought up on a habeas corpus issued to Mr. Nelson as Commissioner appoiated by the United States Circuit Ccurt for this District, uncer the act of Congress for the extradition of fugitives from other coun- tries, pursuant to treaties with those countries, and is sued also to the United States Marshal for this district. Those officers return that the prisoner is ia the custody of the Marshal on « warrant issued by the Commissioner, on mplaint made on oath before the Commissioner, charging the prisoner with baving committed in England the crime of forgery, upon the back of a bill of exchange; the warrant orders his arrest, and that he be brought be fore the Commissioner that the evidence of his criminali ty might be heeré and considered. The prisoner was ar- reeted on the 22d of November, id on the 30th he ap- plied to the Commissioner that examivation shoald take place; the matter was adjourned to the 31 of Dacsm- ber, and then he insisted by counsel that the examia atio: ould no longer be deleyed. (a that occasion it was admitted by the counsel for the prosecution that he would have no further evidence than that on which the warrant issued, except the production of the document alleged to be forged. An acjournm ent was allowed, not- witbatanding the objection of the prisoner; and after- wards this writ was taken out and returned, Oa the evi- dence taken on the return, it appears that the only proof on which the warreut issued and on which the farther commitment of the prisoner was claimed, oonsisted of copies of three depositions taken ia England, viz.:— George Leigh, Wm. Brockdon and George Bryant—copiar of which were preduced, Leigh states all tha facts of the alleged forgery; Brockdon and Bryant use language which, stending alone. would impute the crimes of for gery to the prisoner; Brockdon eayiog that the endorse ment ‘‘Chas Macintosh & Co,” appearing on the bill, is a forgery, cot writ n by him or either of hia partners nor authorized. by them, and he believed it ‘be the handwriting of the prisoner. But the examination of the two last persovs was taken after that of Laigh, aud each of them refers to the preceding examivation of Leigh as containing a copy o! the bill of exchange, and Bryant says al‘o a copy of the endorsemtnt thereon. The facts contgined in that examination as to the contents of the bill of exchange and of ita endorsement must pre vailover those generel sffidavits, especial'y as Leigh's examination gives a verbatim copy of tae bill and its ea- dorsements. Leigh shows that the bill was irawn on the 2d July, 1863, by the Bank of Irelendon the Bank of England, in London, to tha order of Mra, A. Haliday for £48 to, 6d sterling, that it was endorsed by Mrs. Hali- ¢ay, wi hout restriction and not to order—thea end raed by Bukhard & Lobne to A. & I, Camphansen. by the inet toL Kneller, and by him to Chas. Macintosh & Co., to order. Then follows this endorsement, in which the al. leged for ery conrist ceived for Chi No, 9 Vine sti welaer, ‘‘avery ill man,” and in that of Dr. Berger, very tick man;”’ so sick that he, Dr. Eerger, “had nounced to the femily, he thinks between 11 and 12, that he was dying: and not only a very sick, ill, and dying but during most of the morning, whatever may be Berger’s opinion, in w state of meatal aberration, ing to himeelf” incoherently about Dr. ‘*talking and mutter! ho. ses and chemicals,”’ and such like mattess, and givi the most unmistakeabie indications to indace not caly the female domestics. but an experienced pbysician, to consider bim incapable of “carrying oa « conversation.” At this dying heur, between 11 and 12 o’clook, in the midat ofa “severe paroxyam,” braced up by pillows be- bind and rds or cords before, the ear of the patient is saluted for the first time by the voice of a lawyer, an nouncing that he ‘‘had prepared « will for him,” and proposing to read it; and it is contended that the dying man’s language on the occasion, in connection with the contents of the instrumont, is conclusive evidence that his desire, among cther things, was, and that be had 80 instructed Mrs Jones to sey to the Messrs Jones, it Mr. Geo jones should take one fall share of his jate, as to the realty for life, with remainder to his ildren, and as to personalty, absolutely and for ever; in other words, a bequest to himself outright, equi. valent to more $100,000. I shall assume, although not certain, that after the reading of the instrament, in answer to the la’ "a queatioa whether he uuder- stood it, Mr, Mason’s expression was net merely a nod, but ‘yes’ or *perfectly;” and yet, with all deference, I must be permitted to repeat “it was imposible,” im weible to any one, but more especially to one whose ly Was ‘auffering,”” where mind was “wanderiog,” whose speech was ‘inuttering,”” and whose whola beiog, as bad just beem ‘ announced,” and as the result in « few moments demonstrated, was on the ver of dirsolu tion, The Messrs. Jones, it's true, stood by, and may have been innocently Ceceived into a disbelief of the tick man’s incapacity, They felt, as the whole evidence shows, and they had a strong intere: Ané we all know how difficul; it is to convince s man againet his will, and how often, although convinced, he remains ‘of the rame opinion still.” Even experienced counsel, trained in the echool of fcrensic vicisuitudes sometimes exhibit the fame infrmi-y; and when thwarted, treat the opporition they ¢ncounter as judicial blindness, and in some in- stances, to oblige their clients, personal offence Bur neither belief nor disbelief can alter the indubitable facta of the care, or make tbat credible which in ita nature is palpably absurd; to wit, that a special testa- mentary instrument, sixteen folios in length, creating trusts, powers, future estates, contingent ]'mitations, and executory devises, drawn ‘in haste’? necesea riy, and necessarily read with ‘much rapidity,” and never rubmitted or discussed before, in draft or otherwise, wes on the instant “perfectly understood” by a dying map, after a single reading, and that without pause, observation, or explanation. True, Dr. Berger, who was preeent at the ceremony, when asked, on his first examitation, what he thought was the state of Mr. Mason’s mind at the time the will was executed, also an swered that I believe he understood it perfectly; his understanding was good.’’ But is it not obvious that the ¢asy faith of one witness, expec'ally when in opposition to facts cistinetly preved by four othera, ix insufficient to estatlish op impossibility? Dr. Berger, moreover, hia- self scmits that his patient at the time was in the midst of a ‘“parcxysm of great severity,” that his “suffering was very great,’’ snd that he had announced to the fami- ly that “he was dying,” and that he, the doctor, had “forgotten,”’ when interrogated as to Mr. Strong’s mode of reading the will, ‘whether he made pauses in reading it or not,” and that-“he cid not pay mush attention? iow, then, covld canna; adopt, with apy claia to respect for bis cz, that “Mr, Mason understood it ferfeotly.”” Mr. Mason, upon the dostcr’s own astate- ment, was unab’e to understend it perfectly; and the dector himeelf, upon bisown statement, was unable to rayso, The language used by the dootor, it is manifest, f those loose modes of expression rometimes in- acvertently adopted by witnesses, and {s to be taken with the eare sort of allowance us his answer to another in- terrogatory, in which he rays “he, Mr. Mason, was able to sit oT (at 120’clock); he satup five minutes before he died; when tre {act was, as the proof rub sequeatly showed, that. he could not lay down, but for two or three cays had been artificially bolster ¢d up, beth befere and bebind, to prevent suffocation, But again, I eek, if Mr. Mason's uncerstanding was so good, anc bis powers cf speech co unimpaired, and il, hen the doctor * wa: 6 “talked » A ceal,”? svally upon general subjects *? and * never ehe wed any indications” of mental aberration, as ths dosto: says, why was not the subject of his testamentary instructions introduced, ia the whole interval between the afternoon of the 26: and To'clock in the morntvg of the 26th, while the doctor and Mr. George Jones, as the former Awears, were almo't uninterraptediy with him? Aad why, again, at 7 o'clock, when the diaft will had heen pre: pared for examination, waa it not submitted to Mr. Mason, who waa to execute it, instead of the Messrs. Jones. who ‘were to uncer it? Acts, we sre told, sperk loude than words, and it might te edded, an ounsect facti worth a pound of opivion. These maxima are not only commcn sense, but well established law. (Clark vs. Fisher, 1 Paige 112.) Taking them aga gaide, the casa. ag it seems to me, independently of the testimo: y of De Van Rensselaer and the contains perfect coga’vit of the testamentary incapacity of tl alleged testator, for eighteen, if not ‘twenty-four hours, before his.death, and fully justified the jary in fiading, at they did, that the inetrawent produeed although baaring the uncontcious ' igt ature, wes not the willof Jobn Mason, Before dismfrsing this case, {t may perhaps be proper to remark, that on reviewing the argument of the counsel | who impeeches the cor reotncas of the chargé 24 vardio I find « xpreesions ured which, to my ar rl far beyond the limits of profes’) % 4 réed them st the tint, still, ken in connectin~ ~ with occurrences at the trial, they neomed to in’ ate g deliberate purpose. To quote them, Leigh says Co. "isaniuitation of the haudwritiog of Mr. fagh Birley, » partner in the frm, but thet it is not his hand. writing, or that of any member of the firm; and that the words “received for”? aud “Alex. Heilbonn,”? are in the undi¢guired band sriting of the said. Alex Heilboan, He also rays that the bil of exchange came to Mackin: tosh & Co. by letter, and thatitand the letter ‘were sur- reptitiously taken porseasion of by the prisoner, and that the prisoner bad noavthority to write such an eniorse- ment, That after the prisoner fled from Eagland Leigh opened the desk he had used and there found a memor andvum in Heilbcnn’s handwriting, headed “accoun's not acccunted for,” and among the items in that acoonnt this bil of exchange was entered as for £4275 6d. Hs alro states that Hell bonn en a clerk of Maskiatosh & Oo. for two years, andtha' bis duty was to collect out: standing book debts only, and he bad no autbority to en- dorse bills of exchange, or to receive the amounts thereof; that all such securities we:e pail to the backers of the firm. Thr question now presented is whother these facts, if admitted to be true, show that the prisorer committed forgery. Two cases precisely similar ia principle have deen twice decided in Kogland, and ia each it was held that the offence was not forgery, In Rex vs Aracott, (6 Carr & Payne, 408,) the prisoner had endorsed on + 1 of exchange, payable to the order of R. Aickman, these worde:—“Reoeiven for R. Alosman; G. Aracott,” On the trial the conrt held this was not forgery. Little- dale, J., raid—"'I take it that to forse a reoript for money in wiiting the name ofthe pe:son for whom itis received,” But in this case the acts done by the prisoner were re- ceiving for sxother person and signing bis own dame, Under these cirentcatanees the prironer must be agquit ted upon the indictment” Vaughan, J, said:—"I am of the race rpinion and I thiok it ts much better that the mort guilly offender should escape than that the law should be strained to meet any particular caso.” In Re- gira va. White, (2 Carr, acd Kirein 404.) the prisonor, White, wroteon ® Dill’ of exchange to the srcer of i, Tomlirson, this endorsement—Per procuration Taomes Tomlinson, ‘Emanuel White.” Pattison J., apparently tora‘sethe question of Jaw, told the jury that if they were of cpinion that the prixoner, at tue tima when he rigned the endortement, bad wilfwly misrepresented that be came from Tomlipacn, with iatent to defrand him or tke benkers, anc had no autuority from T millason, they ought to find him guiliy. Sut he reserved the question for the fifteen judges. It waa argued fully before them, and they ‘held the conviction wrong ; and that endorsing a bill of exchange under a false as: sumption of authority to endorse aa per procuration, in not forgery, that beize no false making.” It mizht not be necessary to refer to these authorition, for it is the essence of forgery that one signs the name of another to pate it off as the signature, or counterfeit of that other. Thi: cannot be when the party openly, endon the face of the paper, declares that be signs for the other— there ke doen ne{ counterfeit the rame of the other, nor attempt to pass the signature as the signature of that other. The offence belongs to an entirely different clare of crimes, and is not one of those provided for in the treaty bet ween thie country and Great Btitain. That coan- try from which we borrow most of our views of law, aud io which the ctienee *as commited, bas declared if not tobe afirgery. There is no dispute about the facta, and with there two express decisions before us, concurrio with the clear meaning of the term forgery, there woul appear to be ro reascpable doubt about ‘the law—from the facts disclosed in these depositions and whish con- slitote the crime with which the person ia chsiged, he ¢annot, with any propriety, be raid to be charged in depesiticns with the crime of forgery, It is wanec sary to tay how far facta must bo tated in tha “com. plaint mace uncer oath,” required by ouract of Con ees, rer even to say whothe hut if cts need be stated— alt: rms, and the facis(n which that anden the admitted facts it clearly ap- er aD: the charge of « ori {s fet ch crime has been committed, the com plaint then diapr ves the gaueral charge, and takes awa: the feundcaticn for th of an indivi- dnal, swearing in gen articular crime committed, can never be received #1 a foundation for any legal proceeding, when the particnlar facts which states disprove the charge—it is not ‘or him, but fo ecnrta to cecide what is the character of the off when the facts sre established. Otherwise, one might hy arrested ona charge for forgery when the complaint showed that the only offence committed was @ literary forgery, or the ute of the name of a commander in @ mili tary crder by an officer engaged in a civil war on the ride ip opporiticn to such commander, In this cass, too, the prisoner bad general authority to collect book dedta of the firm, that gave him power to sign the namo of the fi m to receipts for those debts: ard aa the limitation of his authority weuld not be known to the public, and be war expaged. £0 far x6 the publis could judga, in collect- ing the prosecutor’s debts generally, third persons would be protected in their payments to Lim. He, tuo, mighteven have suppesed that he had pover to collect this debt, and receipt for it, if the change of sucre ptitloualy obtaining the bill and latter be disregarded, aud it ought, parhaps, to te disregarded, as Leigh states no meausof knowledge which he had of the prisoner committing that wrong, ard leaves itin doubt whether the prizone: ever 6x prersly restricted from receipting for bills, or maroly hat & rpecial authority te collect book debts, from which Leigh inferred that he was restricted from the ethar pow er. Ini at least extremely doubtful whether forgory can be committed by an endorsement not at all essential to the necotiability of » bill; and it hes Seen held in our Superior Court {a's Liataed dplofon, that w dreft ones Sei wiihout restriction could not afterward bs undone, Ip orderas to make the endorsemeut of the last endorser recssrary. Iti ‘ule in relation to all magis trate: acting usder a special limited power, that they have no juristiction unloss they atrictly comply with the power conferred The power to appreten’ fa gitives from ju’ ice in there oases is conferred by the act | asis of comment, I find is but to repeat 0 to perpetuate what, at some fatuce time, | their author may, it in to bo hoped, reg et and recall. i | am aware of the mazim—indeed the ocouasl himavlf | quoted it—tbat julex damnatur cum moc ms atsotiitur. | Still abstain, I'am willing to be condemned for the ex- ercise of a Christian virtue—remembering, on high au: | thority, that Christianity, and of course self denil, is part cf the common law, which it is my daty to practias and administer. It may be pardonable, howaver, barely to remind rome persons, as was done by a celebrated | Fiench judge, on a similar occasion, that it is a mistake |. is not to suppore that oue is military, merely because civil, My corclusion fa that the motioa for a new trial shonld be denie¢—and thet ® judgment pursuant to the Revieed Statutes rhould be extered, declaring that the paper propounded an @ will is not the will of John Mason, and ordering that the record and probate thereof be an- nulled and revoked—nnd that this determination be cer. | tified to the Surrogate to be carried into effect according to law. U, S. Commissiones’s Court. Before J. W. Nelson, Esq. Dro, 28,—The Extradition Case.—The ommissioner de- ferred his decision in the case of Heilboan for afew days. | | | | | Obituary. Mr. Leva Sree, an old and much esteemed merchant of Albany, died im that city om the 26th instant, aged 67 yearr, Died, on Saturday morning, Dooember 11, at his resi- dence in Franklin county, Ky., James Biscor, @ soldierand | feaman of the Fevolution, in the Oth year of his age. | Mr. Biseoe was born in Maryland. He served in tho revo- | lutionary army, and was at the siege of Yorktown and the surrencesc! Comwalis, aad alsg secved as bow wa Commogore Taylor, of Congress of Aug 12, 1848, ¢ 167, It gives the power to iseue the werrant to arrest to avy of the Justices of the Supreme Court or Judges of the several District Car's of the United States, and Commissioners appoiated as tha present Comm istioners bave been appoiated, and also to the Judges of the several State Courts but it is givencnly “pon complaint,’’ made under oath or affirmation, obarg- ing avy person with haviog ‘ committed any of the crimes enumerated o: provided for by any such treaty or oom- ventien,’’ This shows thst without a sufficient complaiat on oath, there is no jurisdiction to issue the warrant. Tt waa a gued that‘on habent corpus the Judge shonld not go beyond the warrant, acd if that were regnler he should remand the prisoner. The auawer to this is that the Commissioner bas ne po ver to iesue the warrant, and no jurisdiction under the act of Congress until a com plaint cn cath te made befcre him. Thore. therefore, who ¢ ppore the diecharge of the prisoner in order toshow that there is @ velid warrant, are bourd to show that it was ireaed on such complairt on oath. acd to show this they must produce the complaint. If when prodaced it shows its original tnvalidity, it must fall to the ground and the warrant with it, In the case of Metzger, before the prerent presiding Judge of the Supreme Court in this district, and in the care of Haynard before the late Jas | ties Sandford, both of these distivgaished Justices want behind the warrant and discherged the prisorers, In the case of Metrger, which was under the e tional treaty with Frence, Mr. Botler, the United States District Attor wey, appeared Car rig the prisoner, and among his print- ed points, while he qsid that ‘the validity” of the mandate was the only question then to be decided, he added that in order to its deeision it was proper to Jook into the provisions of the treaty, the orders of Jadge Betts, contained inthe return, and the evidence rarented to and taken before him, (1 Barb. S. 0. R., Br) snd he did not rely on the mandat: of the Presi dent werely, but on it an fully warranted by “the fasts Ge Ube Case.’? hae lide View 1b Wine ohesa set vis Labone OU - pas to go behicd even the Of the Presiden, of the United States, and to see what the facta of the case were, aad what the eyidence was. So the learned Jutga im that case ssid, “it was his - to ingaire foo the: cause of the prisoner’s detention, and that uo! merely aw {tappeared on the warrant by which he was held, but as it wiht appear from any fect a! before the Judge, 1o show that the imprisonment or detention was ualaw- fal.’’ In the case before Judge Sandford he looked lato the affidavit om which the warrant of arrest was issued, (1 Sandforé ’s Superior Cr. Rep , 706) and found it insuffi cient d the prisoner. There, too, the afti- prisoner with felony, but ite specifica- tions showed that the real offence was obtaining goods by false pretences, which, as represeuted to him, was valy s misdemearorin the Btate where the offence was com mitted, which he also noticed, (pp. 707, 708.) It is enough here to say, that when the warrant depends for its vitality on # complaint en oath, the Ji ‘on habeas: ccrpus, must examine the complaint on oath, to see if it does clearly complain of such an offence as authorises the issuing of the warrant, It was alse strongly reseed. that on habeas corpus a State judge could not in terfere when the arrest purported to be under the laws of the United States cr under @ treaty. The oases of Metzger and Haynard were both ucder the laws of the United States, yet the Siate Judges acted then, and acted: reluctantly, but without hesitation deeming it their duty first to issue the writ, and after they had issued it, not to stop then to make a mockery of justice by refusing to act farther, but to go on and hear the prisoner’s case and cecide it. In Me’ a case, the prisoner was eom- mitted, to be surrendered after examination before s po- lice magistra‘e, but was discharged by the State Judge he was sgain arrested and examined before the United States District Judge. and a commitment ordered by him and also by the mandate of the Psesident of the Uaited States; but again he was brought on habeas corpus before the State Judge, and by him (afore fall argament by the learned counsel, and after a ve y complete exam‘na- tion into the matter,) finally dissharged. This was in 1847, and Congress ia the following year, adoptecithe views of the State Judge, passed = law to”meot the difficulty which he had poiated out; and in that act, so far from dircountenancirg the acti: n.of State Judges in such cases, pave to them the like power to arrest as was given to the United States Jucges. There is a further resson why justice requires the State Judges to act. In the case of Metvger, and in a more recent case, the Supreme Court of the United States refused to grant a writ of habeas corpus in order to review the decision of the United States District Judge, holding that they hed no power to review wis action at ehambers. (1 Bost. 260, 264, 267.) But if the decision of the State Judge is er ous, it can be carried to the Supreme Court of the State,and fiom thence to the Court of Appeals.ant from thence to the Supreme Court of the Uni ster, if the decision of the Court of Appeais be againat the power claimed under the United States law. This is the only entirely peaceable woce of having such questions finally id, if they are still matters of doubt; and the Sta‘e 8 will freely follow (as is their duty) the desistons of Court of last resort, The Revisi ten of ou State provides that all proceedings oom under the artiele authorizing @ habeas corpus before any officer, msy be removed by certiorari into tbe Supreme Conrt, to be there examined and corrected; but thet no such cer- ticrari shall be issued unless the rame be allowed by Justice of the a son Court or a Circuit Judge, nor until & fica] adjudication shall have been made by such oficar, npon claim to be discharged or bailed. (2R.S, 575, 51,69.) They then provide fora writ of error to the Court for the Correction of Errors, by the prisoner and by the Attorney Geveral in criwins) omses, or the party ug- g isved in civil cases. There is ro limit to the cases io which the appeal may be made by certiorari from the de- cision of the officer issuing the habeas corpus to the preme Covrt,and if (as suggested) the U 8. Attornay oan. not carry the case from the Supreme Court ‘to our Court of Appeals, then when the Supreme Court shall decide this case, & fina] judgmeat will have been given ins suit in the highest court oflaw in this State in which a deci- sion in that ru'te could be bad, and there itadecision could be re-examined and revised or affirmed ia the Supreme Court of the United States, upon a writ cf error, if the decisions of the State Court were againat the right set up urder the treaty, ora statute of the United States. i Story’s Laws U. 8, p. 61. Act of 1789, ch, 22, sec. 25.) he State Judge, in thus scting does not in any way in- terfere with the law of the United States On the con- trary, he conforms te it. Ho finda an act of Congresa authorizing an inhabitant of tho State to be carried away to a foreign country only when heed yey is charged on & complaint on oath with some one of the offences larized ins treaty; that inhabitant of the State demands the protection of our laws, end it tarps out that the com- pleint mace sgesint him does not show that he has com- mitted any offense for which he can be removed from our territory ; thus, those who hold him under the warrant re acting in’ opposition to the United States laws, and those who discharge the prisoner are acting in support of those laws The Revised Statutes have en in operation for more than twenty- three years, and ma; considered, so far as they have ed onal! pprobation of sue- ‘They allow the writ of habeas oor- pur, ard require the Judges and courts to issue it except in certain excepted cases All the excepted cases in favor of the United States are those-where process has beea issued by any court of the United States, or any judge thereof, in cases where auch courts or judges have ex- clusive jurisdiction under the laws of the United States,, or have acquired exclusive jurisdiction by the con mencexentof suits In such courts, (2 R. 8., 603, § 24, (22.]) The authorities before referred ‘tq.show that thie “section” does not apply to a United Stas Judge acting at chambers, or as a Commissioner, at least when no rctual suit in pending. Besices, the United States Judges bave ro exclusive jurisdiction to arrest in there cases— the same act which gives them power to arrest gives it also to the State Juége—and the Commissioner who or- ders the arrest dces it committing magistrate, and ie not a Judge of the United States, nor of the Ur ited States: Courts. The power of the State Judge to discharge per- sons held in custo¢y unlawfully by United States officers in exercised probably every week in this city, where per- tons under ege bave been enlisted in the United States Army without the proper conrent. In the matter of Fer- gusen, (9J R, 289,) the majority of the Court seemad 10 hold it to be a matter of discretion to grant itor xt when the Court was sitting in term time. This was in 1812. Even then the Court would not abanden the right io issoe it. In Massachuseita, the power of cisoba: T4 the soldier was exercised 6s early as 1815, (11 Mass, Reps 63, 07.) and it was enforced tn our courts in 1837. (7 Cow. 471,) the court rie, “‘Any person illegally detained bas aright to be die! ed, aud it is the duty of this ccurt to restore him to his lib:rty.’’ Sinee then there has been no hesitation to exercise the power. If it were unlawful, or even inexpedient, Congress would have in- terfered with the exercise of this power. as it could have Gone in these cases by making tbe enlittment ef minors valid unless they were discharged by the United Btates courte Its silence is an aoqutesceace in the power of the State court ia the propriety of its exercise, even in a case where the powers of the Executive are re- strained, but restrained only so far as they are exercised against law. The Kevised Statutes also preslude from the benefit o the writ of habeas corpus persons comm(t'ed or detained by virtue of the final jucgment or decree of any competect trinunsl of etvil or criminal jariediction. (2R S, 563, 24, 22) By the phraseology used, the juegment or decree binds the party in such case, and he cannot go behind it on this writ; but that does not show that he may not go behind the commitment when a ma- ‘trate bas s limited authority and exceeds it. Soa may not be at liberty to go behini an indict- ment except for special purposes, but an indictment has an effect propris vigore, and case, not like the warrant im this a mere statutory remedy, to be issued by # magia iy on certain preliminaries being first complied \d dependent on them fcr its vitality. The ing uniawfuly confined, must be disch and ner, iy an order must be entered accordingly. The follwing are the — upon which Mr. Basteed con‘erds that Eeilbonn is entitled to be discharged 1, That the extradition treaty between this country executes itself, and that the act of” 8 parked only ia aid of such treatien xecute themselves, or provide for their own execution. 2, That the act of Cong:esa of 1848, providing a less Measure, and establichicg a differeat rule of evideace from that provided for by the treaty and the constita- tion, ie void and uncorstitutional 3. That the prisoner having been found within the territorial limits of the State of New York, only such evidence as by the laws of this State wou'd be adainsible becrea State magistrate, possersing criminal jurisdic: tion, can be admitted on the hearing before the Commia- sioner; and that it is the statutory and common isd of the prisoner to be confronted by his accurer an} the witnessés against him, so as to have thers cross: examined on his behalf. 4. That there {a no legal evidence that Muggeridce (the Lond.n alcermen,) isa justice of the ® peace, of other magistrate—and no evil ‘as to what crimes the juris- ction cf justices of the peace for the borough of Lon- don extend . 6. That thers i+ mo evidence or attestation that the papers offered in proof of the criminality of the secured are true copies cf tae original depositions upon which the ovigival warrant was issued. 6 That the *‘complatnt under oath,” required by the teuth article of the treaty and the first section of the act of Congress of 1848, is necrasary to {ni diate jurisdic tion in the officer irsuing the warrant here; and that no complaint was made in this caso. 7. That the facts allege] against the prisoner do not, if preven, constitute the crime of forgery. - The Opera Controversy. TO THE EDITOR OF THE NEW YORK HERALD. New York, Deo, 28, 1868, Sin—In reply to the letter from a part of the orchestrs, published in the 7imes of this morning, in which those musicians decline to participate in the bensfit which I and other artists proposed to give im favor of several un- paid empl: yes of Mr. Marotaek, saying that they ‘neither ¢erire nor need the sympathy or interference of Mr. Salvi, between Mr Mareteek and themselvas.”’ I (eel com ~ pelled reinc‘antly to rem{rd those musicians that at tho end of stor Place searon, in 1661, when heavy ar rem to the orchestra wer d other ee, T eaccificed in their favor my benefit, which had in my contract with Mr. Maretaek bern by him guaranterd to produce at least one thousand Collars; in addition to which, I further prevented to Mr. Maretzek a reesipt for $1,600 of salary dee to me, with the understanding that vhat sum should be expended in paying those persone whe could ro ill afford to be lo ers. The orchestra can hare ly have forgotten that it honored me with @ serenade upon that cocasion, and that th prope ietors of the theatre, Mensrs. Foster and ot! called on me to thank me ‘x the name of the reveral persons benefited. Respectfully yours, LORENZO SALVE. First District Court. ere : mi Poste Uaige Green. . 28.—There were forty more mits brought tried in this oourt this morning, in thirty of sie jon ments were rerdered against the defendants, in sures varying from $5 to $.00 most of them in the latter fone for violating the Corporation ortinanee in encambering the sidewalks and atrects with building materials, boxaa, Xo In ene of the suits for encnmbering the sidewalk by building materials, the builder ret rp a writt n permis sion to do so, purporting to be signed by a clerk in the Street Commissionar’s office. The Judge decidad that it ‘was Dot valid, aa it was not by the Street Comm is - sicner bimeelt—that the Street Commissioner could mot Ae. legate his authority ‘ofgrent parmita, to his clo-k, Tus la a very important decision to contractors, We ander stand all rie permits aramiynad hy a clerk fn th ’ Communic war's 6hiee—tut Ly ike oacowe Wyuiunue soe Dipweli—and popseyuently they are all void,