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Phelan agt. Douglass and others .
Reilay & Wood agt. Thomas & Parker.....
Smith agt. Silliman .
The People ex rel. Figaniere agt. The Justices of the Marine Court......
White, receiver, &c. agt. Miles and Lewis Joy......
Young agt. Edwards and others.....
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.
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.
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