
    Hernandez, an infant, by his Guardian, v. Carnobeli.
    A party arrested and held to bail in a court of the United States cannot be arrested for the same cause of action, by process from this court. He is entitled to a discharge, or at any rate, to a reduction of the bail to a nominal amount, in analogy to the practice of filing common bail under the former practice.
    It is no exception to this rule, that the party was made a defendant in the court of the United States, in consequence of the Spanish consul being there also a defendant.
    As the plaintiff might elect to abandon the suit in the other court, and proceed here, the question was to be examined upon its merits.
    A father haying directed his agent to take his son from a school in the United States of America, and bring him back to Cuba, where he resided, and the agent using no undue force in effecting these directions, an action for false imprisonment, or assault and battery, cannot be sustained against such agent.
    (Before Hoffman, J.)
    Special Term, Feb., 1855.
    The defendant was arrested on tbe 8tb of February, 1855, upon a capias, at tbe suit of tbe plaintiff, sued out of tbe District Court of tbe United States for tbe Southern District of Hew York, and was beld to bail by order endorsed on tbe capias in tbe sum of $2,000. He was lodged in tbe Eldridge street jail. On tbe 9tb of February, 1855, an order of arrest was made in tbis action by one of tbe Judges of tbis court, directing tbe defendant to be beld to bail in tbe sum of $1,000. A detainer was lodged with tbe jailer to that effect. Tbe affidavits in each case were tbe same in substance, and related to tbe same cause of action. In tbe case in tbe United States Court, tbe Spanish consul was joined as a co-defendant.
    Tbe plaintiff, prior to tbis transaction, was put at a public school at Poughkeepsie by bis father, a resident of Cuba. Tbe latter being under arrest by tbe authorities of that island, was induced, by a promise to liberate him on that condition, to recall bis son from tbis country, and employed tbe defendant to effect that purpose. He instructed him to do so with baste and secresy. Tbe defendant executed these directions by inducing the son, -with the aid of the consul, to come to Hew York, on his way to Cuba, and did not employ any personal force to accomplish his object. The present actions were brought for assault and battery and false imprisonment.
    
      Charles Edwards for defendant.
    
      Theodore Sedgwick for plaintiff.
   Hoffman, J.

The defendant has been sued in this action, which is stated to be an action for false imprisonment, or assault and battery.. The complaint is not yet filed; but the case presented on the affidavits shows that such must be the cause of action ; and the counsel of the plaintiff states that the action is for the former cause.

There are two points raised in the case, as now before me.

1st. It appears that an action was commenced in the District Court of the United States against the present defendant, with Francis Stoughton, the Spanish consul, in which the defendant was held to hail in the sum of $2,000, and the order to hold to bail, endorsed on the capias by Judge Betts, is dated the 8th of February, 1855. The affidavits on which that order was founded state precisely the same facts, and supply identically the same cause of action as those in the present suit. The arrest in the suit in the District Court took place on the 8th of February.

On the 9th of February, on affidavits sworn to on that day, the order of arrest was made in this action, and a detainer was lodged with the keeper of the Eldridge street jail, in which he was a prisoner. Thus I understand the affidavits. At any rate, it is not contested that he is under process of arrest, and required to give bail in these two suits.

The action in the District Court is admitted to have been commenced because of the want of jurisdiction in any state court over the Spanish consul; and Camobeli, the defendant here, is made a party there, on the supposition that the jurisdiction over the consul may carry with it jurisdiction over others, otherwise not amenable to it. The language of Judge Ruggles, in delivering the opinion of the court in Valarino v. Thompson, (3 Selden, 582,) supports this fully in cases of a joint contract. Perhaps there is no ground for a distinction in actions for torts.

But, without attempting to decide this point, there was no necessity for the plaintiff making the present defendant a party to the suit in the District Court. He could sue Stoughton as a trespasser, or join the defendant as he might he advised. (Chitty on Pleadings, vol. i., p. 81, and cases.) Even then, if a plea of absolute necessity of joining him in that court could avail to justify a double arrest, that plea is not founded in fact or law.

But the idea is to me totally inadmissible, that, under any difficulty of proceeding, or upon any ground, this defendant can be twice arrested, by process out of different courts in the same state, for the same cause of action.

A number of cases upon this subject are collected in Petersdorf on Bail, 131, 139. (Law Library, vol. 10, p. 73.) See also Peck v. Hozier, (14 John. Rep. 346.)

The question, then, is, whether the defendant, having been last arrested by process from this court, is not entitled to absolute discharge, solely on this ground.

A better practice, however, is to reduce the bail to a mere nominal amount, similar to the discharge on filing common bail under the former system. (Carter v. Hunt, 1 Chit. R. 246.) But as the plaintiff might, perhaps, be entitled to an election, I have proceeded to consider the case on the merits of this application.

The Code now permits the partial trial of a cause upon a motion to discharge an arrest. The 204th and 205th sections have introduced this new principle in the law of bail, or extended and recognized a rule which, to a limited extent, prevailed in the Court of Common Pleas in England. (Petersdorf- on Bail, 194.) The Court of Appeals has interpreted the Code to admit of such a partial trial with the view to the vacating the arrest. (Corwin v. Freeland, 2 Selden, 565.) I have before stated the principle upon which it appears to me the court is to act in such a case. That is, that the inquiry is to be, whether, upon the whole case as presented, a verdict ought to be given by a jury, or a judgment by a single Judge, for the plaintiff or defendant. If the questions are doubtful, then the plaintiff has not made out his case, and the defendant should be discharged. It is in this particular that I differ from some able Judges, who incline to hold that the defendant is to make out clearly that the plaintiff cannot succeed. I have observed in other cases, that the principle of the Code is very similar to the doctrine of a court of equity, upon a motion to dissolve an injunction, or' discharge a ne exeat, when the question of the cause of action is 'for such purposes examined and determined ; although the cause proceeds, and the actual proofs may change the results entirely.

• In testing the present case by these principles, it appears to me, the plaintiff has not, as now exhibited, made out a cause of action. The extent to which the case made by him can be carried, is, that the father of the plaintiff was induced, by the promise of the Cuban authorities to liberate him, or the threat to continue his imprisonment, to direct his son to return; and for that purpose to commission the defendant to bring him from the United States. The fact of a foil and entire authority, in form and language, given by the father to accomplish this purpose, cannot be denied. The letter to the Spanish consul of the 23d of January, that to the son of the same date, as well as the written instructions to the defendant, are explicit and decided. The defendant, then, standing in the place of the parent, uses the very means which the parent directs, of haste and concealment, to accomplish his purpose. He uses no undue force or personal violence. The conduct of the son may well be accounted for in his wish to obey his father on the one side, and a reluctance to leave his associates, and the freedom of his situation, for a land which could not but be distasteful for him. I am happy that I am not called to interfere with this freedom of choice; but to hold that this agent and substitute of the father is subject to an action of assault and battery, or false imprisonment, for seeking to accomplish the wish and command of the father, even if essential to his own redemption from prison, seems to me totally unwarrantable.

The defendant must be discharged from the arrest, and the order vacated in this case.  