The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1863-02-08

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,...s..,..a ,nr,aham and Clerke presiding.
...r.r az suprKlarssDKsr KEsEEDy-ARE
=. ..,..-~., ~ rurr FROM AfutESf On CIVIL INV
go ,r.p POLICEMEN oBsY suBPtxsAs nv 1
rvr, sounrs!-Aus riHy ALWAYS AcfOAIS, ON
DUTY ETC., sTe'
gat ;. Kes,sdv q, alrhe facts Of TINS cas, are as fol-
ON the I'd Of May last Joseph B't, the plaintiff,
arrested by tho defendants for selling lager 81
vos Garden on The alleged grounS that tbe sao Of lager
,,. was In violation law He taken before Mr. Bar
uabss Osborb police magistrate and put under $26o ball.
SIX days Afterwards be surrendered BY his bail,
when he writ Of hassas corpus and was brought
before Hon. Judge MsCunn, who Immediately discharged
him. the ground thai the sale OF lager bier In the audi
forum OF piace public amusement was not violation
Of any the provisions Of tho act entitled "An Act W
regulate places Of public amusement IN the cstcs and
incorporated villages Of this ssase, passed. April IT
Notwithstanding this discharge, tho Superintendent Of
Police continuing to threaten TO arrest Hart he again
sold lager, he lIar obtained preliminary injunction
restraining tho Superintendent from carrying out his
threats On motion 10 vacate said injunction, judge 'r
nard discharged the injunction, holding that this was
ing however,, a, the same time. tna. the sale lager
not In violation Of tho provisions OF the acs 70
late places OF public amusements, passed Aprh ~, Ioo1
Notwithstanding Judge McOunHs previous olscharge
aud the subsequent ruling Of Judge Barnard the gu
perntendent again. the 27th Of june caused tho arre.
Of HART who sucd writ OF babcas corpus ana
brought baore hts Honor Judge Barnard who imme-
datey discharged him from custody, endorsing upon the
writ-The within named j. Hart - discharged, having
committed no oence" II viii DO remembered that last
November the General Term sustained the opinions OF
Judges Mccunn and Barnard with regard TO the sale Of
lager being offence. Hart commenced action Of false
Imprisonment for the recovery Of $4,000 damages and
obtained orders Of arrest therein against the supern
In these actions tho Superintendent and his captains set
that they not liable 70 arrest becanse they are
regard to their liability or noo liability to arrest was ar
gued last July by the District Attorney, Mr. Oakley
Hail. on behalf Of the Police Department ~ ZEN and ~ MT
Voks Garden Hon Judge Cerke, before whom the Ques
tion argued, decided that the Superintendent and
captains Of police were always actually on duty, and,
consequently, were not liable to arrest From this de-
cision appeal taken.
Mr. Cunning Bedford Jr, behalf Of the appellant
made and argued amongst others the following points,
l. Every person holding office under the Metropolitan
Police act is liable arrest civil process except
whilst actually duty according the provisions OF the
thirty fourth section Of the Metropolitan Police act
the Legislature had ever intended to exempt the
Superintendent, captains inspectors and sergeants from
arrest al times there would uDquesonably have been
passed plain, unambiguous unmistakable statute to
whilst actually duty their intention clearly shown
on duty liable 70 arrest and must sssaredy the sspef
ntendent and captains Of police are but mere persons
decision Of the Court below was Clearly erroneous and
ought 70 be reversed, with costs.
Mr. Oakley Hall for respondents, said public policy
required that the Superintendent captains and olhor
officers In the Metropolitan Police department should be
exempt from arrest And because client simply said,
III am arrested why cannot Kennedy Also be arresedY
was reason why he should be. Arrest In civil
cases, At best. was only provisional remedy; and .
Judgment against solvcnt who had been arrested
better than Judgment against an insovent who had
not been arrested and that kennedy nsoivent,
and this Court held he liable 10 arrest In civil pro-
ceedipgs, and judgments wore obtained against him. he
did not know why he should be exception from other
insovents and be, therefore, could upon tho limits
and 90 nothing was gained by arresting him. Mr.. Hall
then presented the following among other points, to
tain his argumsnFor tho reason OF public policy the
order dischargDg the Superintendent and captains Of Ne
tropolitan police, and modifying the .patroimans BAIL
should DO affirmed irrespective OF the deducibe
from tho police statute the police rules The undis
pusd facts OF the show that irrespective Of the
rules, the language Of the statute, actuay duty,
directly applies 10 Kennedy and Davis Hence the order
appealed from 10 correct In this particular action.
Case Argued Decision reaeryed.