Edwards, J. —
A writ of habeas corpus was issued by his honor, Judge Edmonds, on the 17th day of July last, directed to Clemente Jose Da Costa, master of the Brazilian bark Lew Branca, commanding him to have the bodies of Jose da Costa and Jose da Rocha, by him imprisoned and detained, as was alleged, together with the cause of such imprisonment and detention, before him, the said judge, at a time and place therein specified. The respondent appeared before Judge Ed-monds, and made his return to the said writ, under oath; to which the said da Costa and da Rocha put in an answer, also under oath. At this stage of the proceedings, by the consent of the counsel for all the parties, the writ was amended in such a manner as to be returnable before me, and, by a similar consent, I allowed the writ nunc pro tunc.
The return of the respondent admits the detention of da' Costa and da Rocha, and alleges that before the issuing and service of the said habeas corpus, to'wit: on the 10th day of July last, a writ of habeas corpus was allowed and issued, by the Hon. Charles P. Daly, one of the associate judges of the court of common pleas, in and for the city and county of New-York, and of the degree of counsellor of the supreme court, directed to the said respondent, with the object and for the purpose of producing, before the said judge, the persons named in the said first mentioned writ, for the purpose of inquiring into the cause of their detention or imprisonment by the said [135]*135respondent. That, in obedience to the said writ issued by the said Judge Daly, the respondent produced before the said judge, the persons of the two negro men called Jose da Costa and Jose da Rocha. That upon said writ so issued by said Judge Daly, and upon the return thereto, proceedings were duly had before said judge, who after mature deliberation, and after hearing the allegations and arguments of counsel on both sides, decided and adjudged, on or about the 16th day of July last, that the said Jose da Costa and Jose da Rocha were legally under the restraint of the said respondent, and that they should be remanded to his custody; which said decision and judgment of said Judge Daly, it is alleged in the said return, are still in force, unreversed, not set aside, nor made void. The return further states, that in pursuance of said decision and adjudication, the persons of said da Costa and da Rocha were committed to the custody of the respondent. The return also sets, forth other matters, to which it is not necessary, in this place, to allude.
. The answer of da Costa and da Rocha, does not deny the substance of any of the allegations above cited from the return of the respondent.
Upon the said return and answer, the respondent contends that there has been an adjudication of the matter by Judge Daly, and that such adjudication is binding upon me, and precludes any investigation into, the facts of the case, unless new matters are shown, which have arisen since the adjudication of Judge Daly, and which renders such investigation proper.
Before the enactment of the Revised Statutes, the law seems to have been settled, that the return of the respondent was conclusive, and that none of the facts contained in it could be controverted. (3 Hill, 658, note 30.) By the revised statutes, the party brought up may deny any of the material facts set forth in the return, or allege any fact to show either that the imprisonment or detention is un.awful, or that he is entitled to bis discharge. (2 R. S. 471, p. 50.)
If, then, any of the material facts set forth <n the return, are [136]*136not denied by the party brought up, the return, pro tcmto, has the same effect as before the revised statutes, and those facts must be taken to be true. (3 Hill, 658, note 28.)
Upon this construction of the law, I am bound to assume that the facts set forth in the return, and not denied in the answer, are true, and that da Costa and da Rocha have heretofore been brought before Judge Daly, upon a writ of habeas corpus, and that, after an investigation into the causes of their detention by the respondent, Judge Daly adjudged that they were legally under the restraint of the respondent, and that they should be awarded to his custody; and that said judgment now remains in full force.
It thus appears that there has been an adjudication, upon a writ of habeas corpus: that da Costa and da Rocha were at the time of the said adjudication, under the legal restraint of the respondent.
The next question is, does the principle of res adjudicate: apply to this case, and am I precluded by the above mentioned adjudication from any further inquiry into the subject 1 In the case of Mercein v. The People ex rel. Barry, (25 Wend. 64) it was decided by the court of errors of this state, that the principle of res adjudícala was applicable to a proceeding under habeas corpus. Two opinions only wrere delivered; one by the chancellor and the other by Senator Paige. The question under review had been decided by Judge Inglis, then a judge of the court of common pleas, upon a writ of habeas corpus issued by him. The chancellor, in delivering his opinion, said that “ he concurred in the decision of Judge Inglis, that the principle of res adjudícala was applicable to a proceeding upon habeas corpus; and that it could make no difference in the application of the principle, whether the first writ was returnable before a court of record, or a judge or commissioner out of court, for, in neither case, ought the party suing out the writ, to be permitted to proceed ad infinitum before the same court or officer, or before another court or officer, having concurrent, jurisdiction, to review the former decision, while the facte [137]*137remain the same; but if dissatisfied with the first decision, should appeal to a higher tribunal.
Senator Paige says, that “ if a final adjudication upon a habeas corpus is not to be deemed res adjudicata, the consequences will be lamentable. This favored writ will become an engine of Oppression, instead of a writ of liberty.” He further says, “ I think that the following rule will be found sustained by the cases, viz. : Whenever a final adjudication of an inferior court of record, or of an inferior court no't of record, or of persons invested with power to decide on the property and rights of the citizens, is examinable by the supreme court, upon a writ of error, on a certiorari, in every such case, such final adjudication may be pleaded as res adjudicata, and is conclusive upon the parties in all future controversies relating to the same matter.” And, finally, a resolution was adopted by the court. “ That in the opinion of the court, the decision of Judge Inglis upon the question of res adjudicata was correct, and in conformity to the law.” This decision fully and clearly establishes the rulq that the principle of re's adjudicata is applicable to proceedings upon habeas corpus.
The only question, then, that remains upon this branch of the case is, whether the same subject matter between the same parties, has been adjudged by an officer having power to ’issue and decide upon a writ of habeas corpus.
First. Is the subject matter the same ?
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Edwards, J. —
A writ of habeas corpus was issued by his honor, Judge Edmonds, on the 17th day of July last, directed to Clemente Jose Da Costa, master of the Brazilian bark Lew Branca, commanding him to have the bodies of Jose da Costa and Jose da Rocha, by him imprisoned and detained, as was alleged, together with the cause of such imprisonment and detention, before him, the said judge, at a time and place therein specified. The respondent appeared before Judge Ed-monds, and made his return to the said writ, under oath; to which the said da Costa and da Rocha put in an answer, also under oath. At this stage of the proceedings, by the consent of the counsel for all the parties, the writ was amended in such a manner as to be returnable before me, and, by a similar consent, I allowed the writ nunc pro tunc.
The return of the respondent admits the detention of da' Costa and da Rocha, and alleges that before the issuing and service of the said habeas corpus, to'wit: on the 10th day of July last, a writ of habeas corpus was allowed and issued, by the Hon. Charles P. Daly, one of the associate judges of the court of common pleas, in and for the city and county of New-York, and of the degree of counsellor of the supreme court, directed to the said respondent, with the object and for the purpose of producing, before the said judge, the persons named in the said first mentioned writ, for the purpose of inquiring into the cause of their detention or imprisonment by the said [135]*135respondent. That, in obedience to the said writ issued by the said Judge Daly, the respondent produced before the said judge, the persons of the two negro men called Jose da Costa and Jose da Rocha. That upon said writ so issued by said Judge Daly, and upon the return thereto, proceedings were duly had before said judge, who after mature deliberation, and after hearing the allegations and arguments of counsel on both sides, decided and adjudged, on or about the 16th day of July last, that the said Jose da Costa and Jose da Rocha were legally under the restraint of the said respondent, and that they should be remanded to his custody; which said decision and judgment of said Judge Daly, it is alleged in the said return, are still in force, unreversed, not set aside, nor made void. The return further states, that in pursuance of said decision and adjudication, the persons of said da Costa and da Rocha were committed to the custody of the respondent. The return also sets, forth other matters, to which it is not necessary, in this place, to allude.
. The answer of da Costa and da Rocha, does not deny the substance of any of the allegations above cited from the return of the respondent.
Upon the said return and answer, the respondent contends that there has been an adjudication of the matter by Judge Daly, and that such adjudication is binding upon me, and precludes any investigation into, the facts of the case, unless new matters are shown, which have arisen since the adjudication of Judge Daly, and which renders such investigation proper.
Before the enactment of the Revised Statutes, the law seems to have been settled, that the return of the respondent was conclusive, and that none of the facts contained in it could be controverted. (3 Hill, 658, note 30.) By the revised statutes, the party brought up may deny any of the material facts set forth in the return, or allege any fact to show either that the imprisonment or detention is un.awful, or that he is entitled to bis discharge. (2 R. S. 471, p. 50.)
If, then, any of the material facts set forth <n the return, are [136]*136not denied by the party brought up, the return, pro tcmto, has the same effect as before the revised statutes, and those facts must be taken to be true. (3 Hill, 658, note 28.)
Upon this construction of the law, I am bound to assume that the facts set forth in the return, and not denied in the answer, are true, and that da Costa and da Rocha have heretofore been brought before Judge Daly, upon a writ of habeas corpus, and that, after an investigation into the causes of their detention by the respondent, Judge Daly adjudged that they were legally under the restraint of the respondent, and that they should be awarded to his custody; and that said judgment now remains in full force.
It thus appears that there has been an adjudication, upon a writ of habeas corpus: that da Costa and da Rocha were at the time of the said adjudication, under the legal restraint of the respondent.
The next question is, does the principle of res adjudicate: apply to this case, and am I precluded by the above mentioned adjudication from any further inquiry into the subject 1 In the case of Mercein v. The People ex rel. Barry, (25 Wend. 64) it was decided by the court of errors of this state, that the principle of res adjudícala was applicable to a proceeding under habeas corpus. Two opinions only wrere delivered; one by the chancellor and the other by Senator Paige. The question under review had been decided by Judge Inglis, then a judge of the court of common pleas, upon a writ of habeas corpus issued by him. The chancellor, in delivering his opinion, said that “ he concurred in the decision of Judge Inglis, that the principle of res adjudícala was applicable to a proceeding upon habeas corpus; and that it could make no difference in the application of the principle, whether the first writ was returnable before a court of record, or a judge or commissioner out of court, for, in neither case, ought the party suing out the writ, to be permitted to proceed ad infinitum before the same court or officer, or before another court or officer, having concurrent, jurisdiction, to review the former decision, while the facte [137]*137remain the same; but if dissatisfied with the first decision, should appeal to a higher tribunal.
Senator Paige says, that “ if a final adjudication upon a habeas corpus is not to be deemed res adjudicata, the consequences will be lamentable. This favored writ will become an engine of Oppression, instead of a writ of liberty.” He further says, “ I think that the following rule will be found sustained by the cases, viz. : Whenever a final adjudication of an inferior court of record, or of an inferior court no't of record, or of persons invested with power to decide on the property and rights of the citizens, is examinable by the supreme court, upon a writ of error, on a certiorari, in every such case, such final adjudication may be pleaded as res adjudicata, and is conclusive upon the parties in all future controversies relating to the same matter.” And, finally, a resolution was adopted by the court. “ That in the opinion of the court, the decision of Judge Inglis upon the question of res adjudicata was correct, and in conformity to the law.” This decision fully and clearly establishes the rulq that the principle of re's adjudicata is applicable to proceedings upon habeas corpus.
The only question, then, that remains upon this branch of the case is, whether the same subject matter between the same parties, has been adjudged by an officer having power to ’issue and decide upon a writ of habeas corpus.
First. Is the subject matter the same ?
The subject matter under the first writ, was the imprisonment and detention of da Costa and da Rocha, and the adjudication of the judge was, that they were “ legally under the restraint of the respondent, and should be remanded to his custody.” The subject matter of the present writ, is the detention of the same persons by the respondent; and I am called upon to decide what was decided by Judge Daly, viz: Whether they are legally under the restraint of the respondent ?
Second. Are the parties the same?
The proceedings, in both cases, have been in behalf of the [138]*138same persons, against the same respondent ’ The fact that the relators are different, does not alter the case.
Third. Had Judge Daly the power to issue the writ and to decide the questions arising under it 1
By the law, as it stood under the old constitution, it is not questioned that he had the power. By the new law, it is enacted that the “judges of the court of common pleas for-the city and county of New-York, shall have and possess the same powers, and perform the same duties as the first judge and assistant judges of the said court of common pleas now have and possess and perform.” (Laws of 1847, p. 281, s. 7).
There are several matters alleged in the answer of da Costa and da Rocha, for the purpose of showing that there was irregularity in the proceedings before Judge Daly. The answer to all these allegations is, that I am bound by the adjudication, and can not look behind it. If there has been irregularity, I have no power to decide upon that question, in this collateral proceeding. The remedy must be in a court sitting as a court of review.
But it is contended that new facts have arisen in this case since the decision of Judge Dály. The answer of da Costa and da Rocha, sets forth that since the said adjudication, and on the 17th July last, they were hand-cuffed and put in a storeroom, in the forward cabin of the vessel, and there confined, and that the respondent also threatened them with violence when he “ got them at sea.” These are not new facts of such a character as to change the relations of the parties. If there has been an abuse of the right which it has been adjudged that the respondent had to the custody of the persons held in restraint by him, the remedy is not by habeas corpus; much less so as to any threatened violence.
With these views, I am of opinion that the question presented to me under the present writ of habeas corpus, is res adjudicata, and that I am precluded from going into any investigations of the facts in the case; and that no new facts are set forth in the proceedings which authorize any interfer[139]*139ence by me. The writ must, therefore, be dismissed, and Jose da Costa and Jose da Rocha remanded to the custody of the respondent.
Note. — The following is the decision of Judge Daly, referred to in the preceding case:—
Daly, J. —
This is an application upon a writ of habeas corpus to discharge Jose da Costa, Jose da Rocha, and Maria da Costa, alleged by the relator, John Inverness, to be restrained of their liberty by demento Jose da Costa, master of the Brazilian barque Llembranea.
It is set forth in the return of the master, that the persons above named were brought from Rio de Janeiro to the port of New York, in the barque aforesaid.
That the two first named, Jose da Costa and Jose da Rocha, were shipped on board the Llembranea at Rio de Janeiro as part of the crew, and as such he is required to take them back by the laws of Brazil. That the woman Maria has come upon the voyage to this port as a servant and nurse to his wife and family, in whose service she now is. It is further set forth in the return, that Jose da Costa and the woman Maria, are slaves, lawfully acquired by the respondent, according to the laws of Brazil, by which laws, slavery is permitted and the acquisition, possession, and transfer of persons as property, allowed, recognized and protected.
That Jose da Rocha is also a slave, and the property lawfully acquired is as aforesaid, of Antonio Jose da Rocha Peresira, of Rio de Janerio, part owner of the barque, and by him committed to the custody of the respondent.
These facts are admitted by the relator, but he denies that they are sufficient to justify the detention of the parties concerned.
The fact that Jose da Costa and Jose da Rocha constitute part of the crew of the Llembranea, is an answer to the application for their discharge. By § 31st, of the existing treaty between the United States and Brazil, provision is made tor the arrest, detention, and custody of persons composing a part of the crew of any public or private vessel of either nation, who shall desert.
The consuls of the respective nations are authorized to apply to the proper judicial authorities, and upon proving by the exhibition of the ship:s roll, register or other document, that the persons claimed were part of the crew, they are required to be delivered up. They are to be put at the disposal of the consul, and may, at his request, be placed in any public prison until sent to the vessels to which they belong, or to others of the same nation. The treaties made under the authority of the United States, are declared by the 6th Article of the Constitution to he the supreme law of the land, to be binding upon the judges of every state, any thing in the constitution or laws of any state to the contrary notwithstanding.
I am bound, therefore, to regard and carry out the provisions of this treaty. And it would be a palpable violation of it3 obvious meaning and intent, to dis« charge persons upon a writ of habeas corpus, admitted to be part of the crew [140]*140of a Brazilian vessel. If the two persons should desert, they could be reclaimed as a part of the crew. It would be the duty of the judicial tribunals of this state, in such a case, upon the proper application, to deliver them up.
The right of the master to detain them as a part of his crew, is necessarily implied When a duty is imposed to deliver them to him, should they desert from his service, he undoubtedly has a right to detain them as a part of his crew, if he has a right to reclaim them when they leave his vessel.
That they are slaves does not alter or vary the case, for were I to hold that they are free persons, according to the laws of this state, the master would still be entitled to retain them as members of his crew.
They must, therefore, be returned on board the vessel from whence they were brought in obedience to this writ.
It will not be necessary to determine the principal question argued upon the return, to wit: — Whether slaves voluntarily brought into this state, are to he regarded, as property within the meaning of that section of the treaty by which the United States has stipulated specially to protect the property of subjects of Brazil.
The point is not material to the matter now before me. Da Rocha and da Costa are left in the custody of the respondent, not upon the ground that they are his property, but because they compose a portion of his crew.
The question could only be material as far as respects the right of the respondent to detain the woman Maria. But she, by her own declaration, is under no restraint. The writ has been sued out without her knowledge, privity or consent. She has expressly declared her unwillingness to leave the service of the respondent, and expressed her desire to return with him to Rio de Janeiro.
As she is on board the respondent’s vessel of her free will, she can not be regarded as under restraint. The interposition of this writ, therefore, in her behalf, is not called for. She has elected to remain where she now is, and there is no room tp make any order respecting her.