Lapas attēli
PDF
ePub

Cases Reported.

PAGE

400

The People ex rel. Figaniere agt. The Justices of the Marine Court......
Trust agt. Trust

523

36

49

140

184

189

242

White, receiver, &c. agt. Miles and Lewis Joy......
Woolsey agt. Judd and others ...
Webster, respondent, agt. Hopkins, impleaded, &c. appellant.
Woods and wife agt. Thompson and others....
Weeks and others agt. Noxon
Wells agt. Jewett, impleaded, &c....
Winslow agt. Buel......
Williams agt. Riel & Granger...
Walker, President, &c. agt. Hewitt
Weber and others agt. Fowler, &c.....
Wright agt. Delafield and others..
Wynhammer agt. The People..

373

374

395

458

465

530

Young agt. Edwards and others.....

201

PRACTICE REPORTS.

SUPERIOR COURT.

THE REPUBLIC OF Mexico agt. FRANCISCO DE ARRANGOIS,

BARTOLOMI Blanco, and RAMON PALANCA.

Suits may be brought in our courts by foreign governments in the federative

name; but our proceedings must be adapted to the caso, so as to do justice to

all parties; Or, there must be a party to the record with competent authority from his gove

ernment to act on its behalf. Therefore, the Republic of Mexico may maintain an action in the name of the

republic as an aggregate body; and the modes of proceeding in cases of foreign corporations, and of other states of the union, may be resorted to for

the regulations of the practice. The language of the Code admits of the court treating an undertaking, signed

by an admitted agent of a foreign government appointed to sue, to be an un

dertaking on the part of the plaintiff. By the decision in the court of appeals in Valarino agt. Thompson, (3 Selden,

576,) it is settled that it is the right and privilege of the United States, that a foreign consul residing here should be sued by the federal courts. Under an admitted constitutional power, the state courts are excluded from jurisdiction. The case of Flynn agt. Stoughton (5 Barb. S. C. R. 113,) is over

ruled. The construction of the second subdivision of the 179th section of the Code is,

that a defendant may be arrested in an action for money received, where he is a factor, attorney, agent, &c., or other person in a fiduciary capacity; and that the same designated persons may be arrested for property embezzled or fraudulently misapplied by them. There are two cases for the arrest; and

the enumerated persons may be arrested in either of them. In one class of cases, under $ 179, the order of arrest may be made upon facts

which may be entirely independent of the cause of action; which are to be stated in affidavits, and need not be stated in the complaint; and where the arrest may take place after the cause has actually been tried. VOL. XI.

1

[ocr errors][merged small]

In the other class, under that section, where a defendant is sought to be arrested

as an agent for receiving money, the ground of action and the ground of arrest are identical. If the cause of action is shown to be unfounded, the cause of arrest must fail. If the affidavits destroy the allegation of a fiduciary character, the arrest cannot be sustained, although that will not termi

nate the suit. Where, in these last mentioned cases, the defendant raises a fair legal pre

sumption that his claim may be supported, the arrest should not be sustained. Under the Code now, a case of arrest—of bail or no bail-may be decided

upon affidavits which tend to decide the cause as then presented. (See 2 Sel

den, 562.) In this case, the defendant, having been entrusted by the Mexican government

with a duty of delicacy and high importance--an agency to pay out and superintend for the plaintiff-which had been accomplished with admitted skill

and promptitude; and, under all the facts, Held, that the defendant showed a right to a compensation, by way of commis

sion from his government-(the amount claimed and withheld by the defendant, being the cause of action and arrest.) But the court must decide, even on a motion to discharge from arrest, how far such a claim can be sustained, and the extent of the compensation so to be allowed the defendant, when the plaintiff appears entitled to some, though not to all that he demands.

Special Term, January and February, 1855.

On motion to discharge the arrest of the defendant, Arrangois.

Daniel LORD, for plaintiff.
JOHN & W. H. Anthon, for defendants.

HOFFMAN, Justice. The defendant, Francisco de Arrangois, having been arrested under an order made by one of the justices of this court, and given bail to the amount of $60,000, now applies to be discharged upon the insufficiency of the affidavit on which the order was granted, and upon further affidavits and documents on his own part.

The first question relates to the form of the undertaking given upon the arrest, and this materially depends upon the correct understanding of the position of the plaintiff upon the record

The right of a foreign sovEREIGN to sue in the courts of England, upon which Lord THURLow entertained doubts, has

[ocr errors]
« iepriekšējāTurpināt »