NOTES OF RECENT CASES his hand is not committing violence against his person, and is not a trespass. The rule and distinction emphasized in the above case are, to say the least, technical, for, as pointed out by Mr. Freeman, it is difficult to see why levying on a horse on which one rides should be deemed provocative of a breach of the peace while snatching a bridle from the owner's hand or enter ing his house and levying upon his goods should not be so considered. In this Connection the case of State v. Dilliard, 3 Iredell 102, 38 Am. Dec. 708, is well worth reading and the distinction therein made between a writ of distress and an execution proper worth noticing. In this case the Supreme Court of North Carolina, in an opinion which decided that an execution could be levied upon a horse while ridden by the owner, made the following distinction: "It is stated by Lord Coke, 1 Inst. 47a, that a horse, when a man or woman is riding on him, or an ax in a man's hand cutting wood, are for that time privileged and cannot be distrained. But this does not apply to a seizure in execution, though it is probable the objection here taken may have been drawn from it, upon some notion that the cases were similar. Very clearly the passage does not justify it, for it is confined to distress for rent or of beasts damage feasant, and we know that many things can be taken on execution, which cannot, under like circumstances, be distrained. Though we find the rule thus clearly -stated, with respect to distress, there is no such doctrine in any author, with respect to process on execution. There is an obvi ous distinction between the cases, which furnishes the reason of the difference, which is, that making distress is the act of the party himself, to whom the law intrusts to some extent the power of self-redress, and the seizure upon execution is the act of an indifferent minister of the law, not probably disposed to make an unnecessary seizure, or to make it at an unreasonable period. A man's house protects him and his property, if to be got at only by breaking the house. But there is no authority or reason which would exempt from seizure an article in the use of the owner which would not equally protect it, if in his presence merely. It is as much the duty of the party to surrender to the officer the horse he is riding, as it is to allow him peaceably to take the horse from which he has just dismounted; and a breach of the peace, or resistance to the authority of the officer, is not more provoked or probable in the one case than in the other: the law requiring in each case submission to its process, and conferring the power to use such force as may be needed to execute the process effectually." On the general subject of the Writ of Distress, its abuse and the
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statutes passed to remedy that abuse, see Reeves' History of English Law, Vol. 2, 305, 326, 396, Vol. v. 151. Andrew A. Bruce. EXECUTORS AND ADMINISTRATORS. (Lia bility for Expenses of Wake.) N. Y. S. C. — McCullough v. McCready et al., 102 N. Y. S. 633, is a case in which the executors put in a claim for wine, food, cigars, liquors, etc., used in the cele bration of a wake, as a proper charge against decedent's estate. The majority of the court upheld the charge as legal, depending upon the case of McCue v. Garvey, 14 Hun. 562, in which the court considered that the rule had been recog nized. There was a dissenting opinion, however, which repudiated such claim as illegal, and insisted "that the cited case was not in point. EXTRADITION. U. S. C. C, S. D. N. Y. — In the case of Ex parte Browne, 148 Fed. Rep. 68, the Circuit Court for the Southern District of New York passed on the question of the rights of one who had been convicted of crime and fled from justice, upon extradition for another offense. Several indictments had been found against Browne, in one of which he was charged with conspiring to defraud the United States of duties upon imports, and in another with procuring the admission of goods into the United States in violation of Revised Statutes. He was con victed upon the charge of conspiracy and sen tenced to a term of imprisonment. He was re leased on bail pending an appeal from his con viction, and after affirmance of the judgment by the Appellate Court, fled to Canada. The United States demanded his extradition as a convict, but this was refused. Thereupon another demand was made for his delivery, based on an indict ment under which he had not been tried. This requisition was honored by the government of Great Britain, and after arrival in this country and while still on the train, in charge of the . extradition officer, Browne was arrested on a warrant based on his former conviction, and in carcerated in prison. He then instituted habeas corpus proceedings to obtain his release, alleging that he was held in violation of the obligations of the Ashburton Treaty. Article 3 of that com pact declares that no person surrendered shall be triable or be tried for any crime or offense com mitted prior to his extradition, other than that for which he was surrendered, until he shall have had opportunity of returning to the country from which he was extradited. It was contended that as this provision by its terms only prohibited a trial of the person surrendered, there was no prohibition against punishment for an offense of
