The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-03-09
che Case of the Young Cuban disc 1anx,Sr SG
CarnobeI from Arrest.
sUPERyOR COURT SPECIAL TERN DECISION oY

gUPERVH COUHT- SPECIAL TEHM-DECISION OP
JUDGE HOFFMAN,.
MARCH ?-Eioacis H. Hernandez an infant by Fran.
ceo de Ar~ss ks nes friend rs. Crsto1a, Carnobeli
Melton to dssharge the defendant from Imprisonment
under order OF arrest, 10 mitigate the bail, Mr.
Theo. sedgwck for the plaintiffs, Mr. Chsries Edwards
for the defendant
HorFrAs Justee.-The defersisst has been sued in
action stated to De for false imprisonment assault
and battery The complaint 10 nos ye. filed, but the
presented the afdavits shows that sush must
be the cause Of action aud the counse, for the plaintiff
states that the action is the former There
srs two points raised in the before
lss II appears that action comcaenced in the
District Court a the United States againat present
defendant with Francis Stoughtou the Spanish Consr
in which the defendant held bail in the sum OF
81 600, and thc order TO hold TO bail endorsed on tI
caias by Judge Belts dated the Sh Of February 1855
The adavits on which that order founded state pre-
csey the same facts and supply identicaily the
cause OF action as those in the present suit The
the suit in the District Court took place the 9Th of
brusry On the 9th Of February, affidavit, sworn to
on that day e order OF arrest made In this action
and oetaner was lodged with the keeper OF the
kidfidee street jail in which he prisoner. Thus
understand the afhdayits At any rate, 1t s not
tested that he IS under process OF arrest and required
give bail IN these two Amts The action in the District
,ourt admitted TO have been commenced because OF
the want Of Jurisdiction in auy State court over the
Spanish Consul and Csrnobel the defendant here is
u ade party there, the supposon that the iuris-
dichon over the Consul may carry with IL jurisdiction
over Others otherwise not amenabe to it. The language
OF Judge Rugges in delivering the opinion of the
IN vahrno Vs. Ihompson @ Selden bS2) supports this
fully in cases of joint contract ps there is no
ground for adsincton in actions for tort But without
attempting to decide this point there necessity
for the plaintiff making tho present defendant party to
the suit in the District Court could sue Stoughton
as EesIasser or Join the defendant he might b, al.
vised (Chitty on Pdgs, vol L. 81, and casss) Even
then, II plea of ,olute necessity of joining him in
that court could avail to Justify double arrest that plea
Is not founded. in fact law. But the idea Ia to
tally inadmssble that under any difficulty Of proceeding
or upon ground this defendant be twice arrested
by pi OF different courts in the same state for
the same cause Of action number OF upon this
subject Ale collected IN Pstersdof Bail, l3l 80 (Lsw
Library vol ~, p. 49, see also Peck Hozer, "a
John. Rep. JAG The question then H. whether the de
PENDANT having been last arrested by process this
court is not entitled to an absolute discharge solely
this ground. But as the plaintiff might, perhaps, be
entitled to election, have proceeded to consider the
case ON the merits OF the application better practice
however - 70 reduce the bail TO mere nominal amount
similar to the discharge filing bail under the
Tor mer system Garter Hunt Chittys Rep 21G.)
The Code now permits the partial trial OF upon
a motion TO discharge arrest The 20ith and 201th
sections have introduced this principle ia the a~
OF bail or extenGsd and rscug gniLed n rule which to
limited extent prevailed in the Court Of Common Pleas
in England (Petersdorf ON Bail, lgi The Court of Ap
pesls has interpreted the Code TO admit of sucn partial
trial with the view 10 the vacatng the srre,t, CONAN
VI. Freeland, ssluen S5j) have before stated the
principle upon which II appears TO the court TO
act IN such case That is that the inquiry is be-
whether, upon the whole presented, a verdict
ought to be given by jury. iu 1gment by single
Judge for the plaintiff defendant II the questions
doubtful then the plaintiff has not his case
and the defe ndan should BE- discharged II this par
ucuar that differ from able Judges who incline
to mold that the defendant To make out clearly that the
plaintiff cannot succeed have observed In other
that the principle of the Cod. very similar the doc
tr,ne of Court OF Equity, upon motion 20 dissolve
Injunction, discharge e1sat, when the question
OF the OF action for such purposes examined
and determined although the proceeds, aud the
ua proofs change the results entirely. In test
ing the present by these principles, appears TO
the plaintiff has not exhibited made n
II action The extent TO which the made by
him can be carried s that the father of the plaintiff
induced by the promise Of the Cuban authorities to
hberate him the threst TO continue his
to direct his to return an for that purpose
mission the defendant TO bring him 10 the United states
The fact Of full and entire authority In form and lao
Rusge, given by the father 70 accomplish this purpo.e
snnot be denied The letter the spanish Consul OF
the 2Jd Of January that TO the OF the date
well ~ the written instructions to the defendant
plct and decided tn. defendant, then standing the
place OF the parent The very which the pa
reut directs, Of haste ana concealm. mt 10 accomplish
his purpose. He undue force personal vlo-
tpce. The conduct Of the may well oe accounted
for in his wish 10 obey bus father the side aud
reluctance 10 leave his associates and the freedom of
his situation for land which could not but be- disaste
full TO him. am happy that am not called 20 interfere
with his freedom Of choice but 20 hold that this agent
and substitute Of the father subject To action of
assault and battery false Imprisonment for seeking
10 accomplish the wish and command OF the father
II ers'n 'nsl TO his redemption from prison, Ia
totally un~arrantable. The defendant must b. dia
charged from arrest ana Ii. order vacated in h,