The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-02-01
LEGAL INTELLIGENCE.

The Case OF Senior Arrangoix md the Mexican
Government.
SUPERIOR C0URT--sPECIAL TERM.
Before Hon. Jsdge Hoffman.
THE REPUBLIC OF MEXICO VS.. y. ARaANGoIz.
JAM 3l-Mr. d. d. Lord, in his argument on behalf of
the Mexican against the order discharge
the defendant from arrest submitted several points for
the consideration OF the court which he argued
considerable length lie cited the 10th section OF tho
code in an action for a fine penalty, a promise
to marry for money received for property embez
zled frauduentIy miss applied by public officer, or
by attorney agent OF banking association the
OF his employ UGH, &c, &C. In an action for
money received by person in hduciary capacity
he is liable to arrest unless he clearly makes out
a discharge Mr. Lord continued to contend II
the plaintiff has the money 1t is his duty to pay
it over or he may deposit. II he has spent the
money without right 1t IL fraud. 1t Is not incumbent
the plaintiff to show anything but the receipt and
fraudulent character He il not bound to show fraud
misapplication.
The defendant shows that the money was received
by him fduciary and, plaintiff says, Consul Ge-
neral His attempted explanation of keeping his salary
is contradicted by documents His whole commission
I'D hoe to avoid mercantile charges and re
sponsibites, and the correspondence with him shows
that he saaried officer he addressed as Con.
sui General by the Secretary
D.
sequent agreement or allowance by his government and
against law.
The defendant cannot measure out his own compensa
ton without giving security for the of his
be wrong The cited lie all cases
for compensation for services clearly EXTRA and where
the compensation was allowed by the proper SUPERIOR
usage of Office No such thing is pretended in this
The defendant did not renounce the consulship
until after he had determined to withhold the money
Counsel commended that the retained was ex-
cessve and much TO be fraudulent the trans.
action was not mercantile one; Il was official and id
a. hial matt in hic
neither increased his labor his risk. Mr. Lord
tnued to contend that this not mercantile opera
tion but that 1t official one that the was
to the defendant patriotism honor and confidence,
and Mexican officer, and he therefore, at
tempt to retain in opposition. Mr. Lord concluded by
reviewing the letter Of Senior Arrangoz of December a.
1884.
THE DEFENDANTS POINTS.
Mr. Antbon, in summing up for the defendant, and
contendng for the discharge from arrest submitted that
the undertaking is bad not being executed by the plain
Tiff; that the republic OF Mexico quoad this action
mon resident plaintiff" AMI is to be treated ind
vidua or as "foreign corporation and must execute
obligations required by the statutes rules Of court as
SUCH [Iegg On Outlawry 43, &c
The undertaking, to be valid according to the statute
ought TO have been executed under plaintiffs SEAL by
virtue Of power under seal to be annexed As now
executed, 1t does not bind plaintiff, and being defective
in this par ticular, the sureties are not bound
minister pleupotentiary does not represent his 60
vernment in its private matters of contract He is
Entrusted with matters of State and diplomacy only and
to enable him to bind his in ordinary
ters OF contract he requires an express power OF aor
ney.
On the motion to discharge the Order the court has
the power TO look into the adavits and determine the
probability mprobability of the alleged fraud, and
sustain or discharge accordingly.
When fraud Is fully denied to the satisfaction OF the
court the order to arrest falls in the manner and
for the same as the order for injunction.
The right TO arrest the defendant in this case claimed
the ground that he in fduc airy capacity that
he received money belonging TO plaintiff, and that he
tains the without just right and in fraud to plain
tiff II also to be claimed, at the end OF the ada
yit the ground of his alleged intention to leave the
jurisdiction OF the court The defendants affidavit in
reply sets for the character in which he received the
money, namely for the plaintiffs use, and shows the
application OF 1t by PLAINTIFF order he denies the de-
ention without right and denies all fraudulent intent
If the court is satisfied from defendants affidavit that
there is fraudulent intent and that the money Is de-
tanned claim of right having reasonable founda-
tion, he ought to be discharged
In this view the entire merits of the present applics
ton are resolved into the question OF probable right
which if it exists necessarily excludes all fraud.
The plaintiff admits the services and defendants title
20 a recompense in FORM but denies his right to
Iecuniary compensation, the ground that he
Consul General and as SUCH by law o. Mexico bound
to perform other services, however different from his
consular services without compensation.
The defendant denies the existence OF such law, and
plaintiff makes counter proof or averment. Theds-
iendant also insists that he had ceased to be Consul
General that he then held but one office, namely Spe
cisl Commissioner" imposed upon him after he had
made him.ef private individual in obedience to the
orders Of his government.
er equo bono had he retained his Office OF Consul
General the services being entirely foreign and dissmi
Where there thus appears fair question for
and jury the is not within the penal spirit OF the
code and the defendant is be embarrassed in pre-
sentng it, The in this stage must also in addition TO
those grounds be disposed OF according to laws and
the Courts Of the United States the rule well settled
chat officer who at the request Of his government,
performs extra services beyond the OF his regular
duties OF different character is eatitled 10 proper
compensation /" Ost Kent IL, ~, Andrews VS.. United
States-second Story's Rep, &c, &C
As therefore clear that the demand in question
would be legal and sustanabe against the government
OF the United States had the services been rendered by
person in its employ. under the circumstances
those attending the defendant in this the money
retained has lost Its hducary character and 10 held by
the defendant In his own right.
Imprisonment for debt being abolished as general
rule OF Law the facts alluded to- in order to bring
party within the exceptions, must in fdUorem berd,is,
be most strictly construed and under the exception
erning this case, clear Of undened fraudulent
detention of ducary funds must be established before
his imprisonment can be allowed.
To allow II in this under the facts described and
to by the defendant, would repeal the non-im-
prsonment act, and expose copsgnse agent fac
Of his ordinary business should retain his commission
ees according to the usual OF business to iue
vtable imprisonment aud would compel such persons
leave their compen saton TO the chances of
tgans insovent Mr.. Anthem, therefore, contended
hat the order for being final adds weight 10 the
onts he had adduced and he submitted the defendant
hould be discharged.
The decision OF the Court is reserved
United States Commissioners Office.
Before Geo W. Morton, Esq.
THE ALLEGED CHARGE OF SLAVE rRAFrIcxISG.