Hernandez, &c., agt. Carnobeli.

The complaint is not yet filed; but the case presented on the affidavits shows that such must be the cause of action; and the counsel of the plaintiff states that the action is for the former

cause.

There are two points raised in the case, as now before me. 1st. It appears that an action was commenced in the district court of the United States against the present defendant, with Francis Stoughton, the Spanish consul, in which the defendant was held to bail in the sum of $2,000, and the order to hold to bail, endorsed on the capias by Judge BETTS, is dated the 8th of February, 1855. The affidavits on which that order was founded state precisely the same facts, and supply identically the same cause of action as those in the present suit. The arrest in the suit in the district court took place on the 8th of February.

On the 9th of February, on affidavits sworn to on that day, the order of arrest was made in this action, and a detainer was lodged with the keeper of the Eldridge-street jail, in which he was a prisoner. Thus I understand the affidavits.

rate, it is not contested that he is under process of arrest, and required to give bail in these two suits.

The action in the district court is admitted to have been commenced because of the want of jurisdiction in any state court over the Spanish consul; and Carnobeli, the defendant here, is made a party there, on the supposition that the jurisdiction over the consul may carry with it jurisdiction over others, otherwise not amenable to it. The language of Judge RUGGLES, in delivering the opinion of the court in Valarino agt. Thompson, (3 Selden, 582,) supports this fully in cases of a joint contract. Perhaps there is no ground for a distinction in actions for torts.

But, without attempting to decide this point, there was no necessity for the plaintiff making the present defendant a party to the suit in the district court. He could sue Stoughton as a trespasser, or join the defendant as he might be advised. (Chitty on Pleadings, Vol. 1, p. 81, and cases.) Even then, if a plea of absolute necessity of joining him in that court could

Hernandez, &c., agt. Carnobeli.

avail to justify a double arrest, that plea is not founded in fact or law.

But the idea is to me totally inadmissible, that, under any difficulty of proceeding, or upon any ground, this defendant can be twice arrested, by process out of different courts in the same state, for the same cause of action.

A number of cases upon this subject are collected in Petersdorf on Bail, 131, 139. (Law Library, Vol. 10, p. 73.) See also Peck agt. Hozier, (14 John. Rep. 346.)

The question, then, is, whether the defendant, having been last arrested by process from this court, is not entitled to an absolute discharge, solely on this ground. But as the plaintiff might perhaps be entitled to an election, I have proceeded to consider the case on the merits of the application.

A better practice, however, is to reduce the bail to a mere nominal amount, similar to the discharge on filing common bail under the former system. (Carter agt. Hunt, 1 Chit. R. 246.)

The Code now permits the partial trial of a cause upon a motion to discharge an arrest. The 204th and 205th sections have introduced this new principle in the law of bail, or extended and recognized a rule which, to a limited extent, prevailed in the court of common pleas in England. (Petersdorf on Buil, 194.) The court of appeals has interpreted the Code to admit of such a partial trial with the view to the vacating the arrest. (Corwin agt. Freeland, 2 Selden, 565.) I have before stated the principle upon which it appears to me the court is to act in such a case. That is, that the inquiry is to be, whether, upon the whole case as presented, a verdict ought to be given by a jury, or a judgment by a single judge, for the plaintiff or defendant. If the questions are doubtful, then the plaintiff has not made out his case, and the defendant should be discharged. It is in this particular that I differ from some able judges, who incline to hold that the defendant is to make out clearly that the plaintiff cannot succeed. I have observed, in other cases, that the principle of the Code is very similar to the doctrine of a court of equity, upon a motion to dissolve an injunction, or discharge a ne exeat, when the question of the Vol. X.

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Hernandez, &c., agt. Carnobeli.

cause of action is for such purposes examined and determined; although the cause proceeds, and the actual proofs may change the results entirely.

In testing the present case by these principles, it appears to me, the plaintiff has not, as now exhibited, made out a cause of action. The extent to which the case made by him can be carried, is, that the father of the plantiff was induced, by the promise of the Cuban authorities to liberate him, or the threat to continue his imprisonment, to direct his son to return; and for that purpose to commission the defendant to bring him from the United States. The fact of a full and entire authority, in form and language, given by the father to accomplish this purpose, cannot be denied. The letter to the Spanish consul of the 23d of January, that to the son of the same date, as well as the written instructions to the defendant, are explicit and decided. The defendant, then, standing in the place of the parent, uses the very means which the parent directs, of haste and concealment, to accomplish his purpose. He uses no undue force or personal violence. The conduct of the son may well be accounted for in his wish to obey his father on the one side, and a reluctance to leave his associates, and the freedom of his situation, for a land which could not but be distasteful to him. I am happy that I am not called to interfere with this freedom of choice; but to hold that this agent and substitute of the father is subject to an action of assault and battery, or false imprisonment, for seeking to accomplish the wish and command of the father, even if essential to his own redemption from prison, seems to me totally unwarrantable.

The defendant must be discharged from the arrest, and the order vacated in this case.

Roberts agt. Clark and another.

SUPREME COURT.

MOSES ROBERTS agt. JOSEPH W. CLARK and another.

Application for judgment, under § 247 of the Code, is a motion; and the prevailing party is only entitled to costs as upon a motion. (This decision sustains that in Gould agt. Carpenter, 7 How. Pr. R. 97, and is adverse to Lawrence agt. Davis, id. 354, and Roberts agt. Morrison, id. 396.)

At Chambers, Penn Yan, Jan., 1855.-TAXATION of costs. The defendant, Joseph W. Clark, had demurred to the complaint of the plaintiff, and the plaintiff, under § 247 of the Code, applied, on a notice of five days, at chambers, for judgment, on the ground of the frivolousness of the demurrer. Judgment was rendered for the plaintiff upon the demurrer, but with liberty to the defendant, Clark, to answer within twenty days, upon payment of the costs of the demurrer. By consent, the taxation was referred to Mr. Justice WELLES.

F. W. SALISBURY, for plaintiff.

T. HINCKLEY, for defendant, Clark.

WELLES, Justice, said, I incline to think, upon examination, and so decide, that the defendant, Clark, should be allowed to answer, upon paying ten dollars costs-being costs as upon a motion.

Canal Bank agt. Harris, &c.

SUPREME COURT.

THE CANAL BANK agt. HARRIS.

THE SAME agt. THE SAME.

The 401st section of the Code says, "And no motion can be made in the First District in an action triable elsewhere."

Held, that this applied to a motion to vacate executions issued to the sheriff of New-York, where plaintiff resided,-upon judgments entered in Albany county-third district. And to all motions in causes where the venues are in another district. (See Harris agt. Clark, ante, page, 415.)

New York Special Term, January, 1855.-MOTION to vacate executions.

The facts in this case appear sufficiently in the opinion of the court.

, for motion.
opposed.

MORRIS, Justice. In both of these cases, judgments were entered in this court, in the county of Albany, in the third judicial district. Executions on each of said judgments have been issued to the city and county of New-York, the first judicial district, where the plaintiff resides. The defendant applies to this court to set aside the executions for irregularity, because they were issued after the expiration of five years since the entering of judgments, without first having obtained permission of the court.

The plaintiffs object to the court in this district entertaining the motion, and claim that § 401 of the Code sustains them in the objection. The words rested upon are, "And no motion can be made in the First District in an action triable elsewhere."

The fair import of these words is, that no motion shall be made in the first district, in a cause in which the venue is laid in another district.