The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1847-08-07

ia Costa aud Jose do Rocha-Beow Is the opinion of
ton presented to him present writ habsas
corpus is udeata, that he precuded from going
into any investigation OF the the and he
accordingly remanded the two slaves to the custody OF
the captain. After the opinion delivered Messrs.
that the judge should order the sheriff hold the
groes until they had an opportunity OF bringing the
there. Thshs peremptoriy declined not having any
authority The arties then procured another writ Of
habeas corpus from Judge Oakley
THE DECISION.
a writ % hooeas corpus was issued by his honor
rsctsd to csmsnts jose da Costa master Ss Of the
Brazilian bark Lew Branca, commanding him to to have
the bodies OF Jose da Costa and Jose da ocha BY him
imprisoned and detained, alleged, together with
the cause Of such imprisonment and detention before
s% the said Jndss at time and place therein spes
aud made his return to the said writ under OATH to
which the said da Costa and da Rochs put in an
the consent Of the counsel for all the parties the writ
was amended in such manner as to be returnable be-
fore me, and, by similar consent, allowed the writ
The return Of the respondent admits the detention of
ia Costa and da Rocha and aedges that before the Is
suing and service Of the said habeas corpus to witon
lowed, and issued by the Hon Charles p Daley Of
the Associate Judges Of the Court of Common Pleas
in and for the city and county of New York. and of the
degree OF counsellor of the Supreme Cour directed to
the respondent with the object and for the purpose
of producing before the said judge the persons
the said first mentioned writ for the purpose Of enquir
ing into the of their detention imprisonment
by the said respondent That in obedience to the said
duced before the said judge the persons of the negro
called Jose da Costa and ds Rocha That upon
said witt so issued by said Judge DAILY and upon the
turn thereto, proceedings duly had before said
judge who after mature elaboration and after hearing
the allegations and arguments of counsel both sides
decided and adjudged about the 10th day of July
that the said Jose d Costa and Jose da Rocha
legally under the restraint of the said respondent and
that they should be remanded to his custody which
said decision and judgment of said Judge DAILY 1t is al
legged in the said return still in force, unreversed
aside made void The return further states
that In of said decision and the
Of said da Costa and da Rocha committed
to the custody of the respondent The return also sits
for the other matterf to which it is not this
place, to alude.
The answer of Da Costa and Da Rocha does not deny
the substance Of Of the allegations above cited from
the return of the responder
Upon the said return and answer the respondent
tends that there has been adjudication of the matter
by Judge DAILY, and that such adjudication is binding
upon and precludes any investigation into the facts
of the case, unless matters shown which have
arisen since the Of Judge DAILY and which
render such investigation proper.
Before the Of the Revised Statutes, the
law to have been settled that the return of the
respondent conclusive and that none of the facts
contained In it could be controversial Hill, b. note
80 By the Revised Statutes the party brought up may
deny any of the material facts set forth the return
acge any fact to show either that the Imprisonment
detention unlawful that he entitled to his dis
charge. r. s.. All p. so.
IT. then any the material facts set forth in the re-
turns are not denied By the party brought up the re-
turn pro bano has the same effect as before the Re-
vsed Statutes and those facts must be taken to be true
| 3 Hill 65s, note %.
Upon this construction of the law, | am bound to as
that the facts set forth in the return and de-
MED in the answer, true, and that Da Costa and
Da Rocha have heretofore been brought before Judge
investigation into the Of their detention by the
respondent, Judge DAILY adjudged that they were
they should be awarded to his custody said
judgment now remains in full force.
thus appears that there has been adjudication,
upon a writ Of habeas corpus; that Da Costa and
Da Rocha at the tmeiof said adjudication under
The next question is, does the principle of res
odjudtcata apply to this case and am pre-
any further inquiry into the subject! In the Of
Mercen vs. The People ex rel-Barry IS Wend Git
the principle Of odjndieata applicable pro-
ceeding under habess corpus Two opinions only
Paige The question review had been decided
by Judge Ingis then judge Of the court of Common
Chancellor delivering his opinion said that he con-
Cured in the decision of Judge lng that the principle
S o., rss SuacatS was applicable to proceeding upon
the application Of the principle whether the first writ
was returnabe before court Of record, judge
commissioner out Of court for in neither ought
the party suing out the writ to be- permitted proceed
I'D innitum before the same court officer, before
another court or officer having concurrent Jurisdiction
to review the former decision while the facts remain the
same but If dissatisfied with the first decision should
| appeal to higher tribunal.
senator Page says that if q final adjudication upon
habeas corpus IL not to be deemed adudicata the
consequences will be lamentabe This favored writ will
become engine oppression instead Of writ Of lib
erty He further says" think that the following rule
will be found sustained by the ca.es viz Whenever
hnal adjudication of an inferior record or OF
inferior court not Of record persons invested with
to decide on the property and rights of the c
zens, Is examnabe by the Supreme Court, upon writ
OF error on certorari In every such such final
adjudication may be pleaded res adjudicata, and
Is conclusive upon the parties In all future
relating to the same NATTER And finally, resolution
adopted by the court, That in the opinion the
court the decision of Judge ns upon the question of
res odjudeata correct and in conformity aw''-
This decision fully and clearly establishes the rule that
the principle OF res adudeaa is applicable to proceed
The only question then that remains upon this branch
of the is whether the subject between
hetame parties has been adjudged by officer having
power to hear and decide writ Of habeas corpus
| First, is the subject matter the same?
The subject matter under the first suit was the impr-
sonment and detention of La Costa and La Rochs, and
the adjudication Of the Judge was thst they "e
gay under the restraint of the respondent should
be remanded to his custody The subject matter
present suit the detention of the persons by the
decided by Judge DAILY viz Whether thew are legally
| under the restraint Of the respondent
| Second, Are the parties the same!
The proceedings, in both cases. have been behalf
the same against the respondent The ia
that the REALTORS different does not altethe care
Third, Had Judge DAILY the power to issue the writ
and to decide the questions arising under it
BY the law rs stood under the old constitution 1t is
not questioned that he had the power. By the law
under which Judge DAILY now holds his Office, IL is
acted that the Judges of the Court Pleas for
the city and county Of New York, shall have and pos
sess the same powers and perform the duties as
the first Judge and assistant judges OF said Court Of
sh1 a uess now hadnd possess and perform Laws
There several matters alleged in the answer of Da
tosta anu Du feocna OF showing that
there rreguarity in the before Judge
DAILY The answer to all these allegations IT, that am
bound by the adjudication and cannot look behind IT,
If there has been rreguarity, have no power TO de-
eide upon that question: in this collateral
The remedy must be in court sitting a court of re.
view.
BUTT is conended that facts have arisen in this
since the decision Of Judge Daily. The answer of
Da Costa and Da Rocha sets forth that the said
adjudication and the nth July last they were hand.
cuifed and put in store Ia the forward cabin of
the vessel and there confined and that the respondent
also threatened them with violence when he got
at sea- These not facts Of such character
to change the relations ofthe parties IL there has
abuse OF the right which IL has been adjudged that
the respondent had to the custody of the slaves held In
restraint by him the remedy not by habeas corpus
| much less a to any threatened violence.
With these views, am Of opinion that the question
presented under the present writ Of habeas corpus
Is adjucatd, and that precuded from going into
any investigation OF the facts in the case; and that
facts set forth in the proceedings which autho