The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-11-15

vnaBoa otateo Uogtxaot OO0rts
Hon. Judge InsrahAm prssaAing.
TIE CASE or fuB GOVERNMENT or PExU.
Nov. lA-1ne Government Of Peru, ~. 7Ae SAtp NORTH
AmNsoa.-This libel il filed by "ths government Of
Peru, BY Nesnith Sons agents." for the recovery Of
damages for the violation Of charter party entered into
BY one Adam Smith, by virtue Of which claimed that
the ship was found charged in the hbebt ON
Or about the 18th day Of August 1852 the said Adam
smith, at the city New York. then being the Of
the ship, or then having full power and lawful author
ty in the premises to contract for and bind the ship,
tered into contract with the libelant through its
agents. Messrs +. Barreda Brother for the charter
and hire Of the ship to the Hbelant to bring cargo
guano therein from the Chncha Islands, that the ship
was bound by such contract, and that the same has
been violated by which the ship Il answerable for the
damage which has by the libelant been sustained The
libel to by Henry Nesmth ono Of the firm Of
Nesmth Sons the 9th day Of May 1862 the day on
which it WAS fled Mark Cornell intervenes as the own
or Of the ship and In his sets up that st the
time when 1t claimed in the libel that Adam Smith
executed the charter party he the said Smith, was not
the owner or the snip and had power auhoey to
contract bind the ship and that he Cornell at that
time was the Of the ship and had the authority
and right bind her He denies all knowledge the char
ter party and says he executed the same and IL
Smith did execute IT, he denies that BArreda Brother
were the agents Of the beant that the libelant
authorized ratified the charter party autho-
rired this action to be brough. thereon ratified
the bringing Of the same. Thomas R. Foster and Charles
f. Stephenson intervene claiming to be mortgages Of
he ship and to have lien upon her for advances made
or her and ON her account. In their answer, among
other things they set forth that when the charter party
claimed by the hbeAnt, executed, Smith not
the Of the ship and had power to contract
to bind hor but that Mark Cornell at that time owned
the ship and had the authority to control her. They
deny all knowledge of the charter party. They deny,
also, that Barrcda Brother the agents Of the
bellan or that the beant over authorized or ratified
brought, ever ratified the bringing of the same.
There exception taken in either Of the answers
in any pleading written motion to the right Of the 60
vcrnnient Of Peru, through by of private in
divdua to file and prosecute thc BEL provided the 60
vernment has in point Of fact authorized and empowered
any sueh individual to do. There have been many
questions discussed the trial which, from the view
taken Of the 1t is not necessary to determine It is
denied in both that the lbelant authorized
this action to be brought ratified the bringing Of
the same 1t is claimed the part of the heant, that
this exception cannot be taken in this way that the only
and proper way OF taking exception Of this kind Is
either by preliminary written notion by separate
preliminary pleading and that by filing an answer an
authority to file and prosecute the libel is admitted
For the purposes of this case with the view have taken
Of 1t is not necessary that should give this question
tion Of this kind by written motion, by plead
ing separate from the and before the s
fled and without determining whether that is the only
appoint Messrs Nesmith Sons to do that which they
have DONE or to be done and shall take it for
granted that Bareda Brothers the agents Of the
beant when they in the name OF the libelant, exc
cuted the charter party and that the beant autho-
rized and ratified the Tho respondents further in
sist that although the government Of Peru may in point
of fact have appointed Nesmh Sons its agents to e
this hbel and has authorized and ratified the bringing
and the prosecution OF this suit ought not to be sus
taned for the reasons FIRST that foreign sovereignty
can bring suit in the District Court and, secondly, II
such foreign sovereignty can in any case that it can
only be done by public minister other diplomatic
agent appointed by such foreign sovereignty and resi-
dent in and recognized by the United States, where
there is such public minister or diplomatic agent.
which 1t is claimed that wrong has been committed
upon that foreign government, and demand is made
upon wrong committed upon the rights of the govern
ent in whose the libel is fled and the demand is
to r ss IN s tn ,. an
mitted Every suit in court Of Justice whether in the
form Of libel or otherwise is demand Of right and is
made by the in whose the suit is brought upon
the soyeregnty by whom such court Is established to
making the demand, BY the fundamentally and aid Of
the court in which such suit is brought In the Of
Tor made the following suggestion to the counsel-B,.
tore this comes up again, wish you to consider ques
lion which has affected my mind during the hearing.
The bill is brought BY persons stating themselves to be
entitled, upon good consideration, to an interest in
bank stock in this country in the name Of trustees.
They derive il from acts of foreign independent State
wish !, TO be considered whether any foreign govern
rnept under any denomination sue in the municipal
courts o. The country whether it r not matter Of appli
in the old any direct plain authority Before
that suggestion was made suits had been frequent
foreign sovereignty and the right to bring such suits
had been sustained (See the Nabob the Carnatc vs.
there @ ass The crd rhi shs
latter case he being the predecessor OF the one be-
fore whom the case in vesey, Jr. tried in
that the Nabob knows nothing Of this suit cannot take
notice Of that for it Is not pleaded Therefore must
take it to be his b while It stands upon the reccrdn
there have been many cases n Great Britain in which ii
has been decided that foreign government can sue in
bian government w. Rothschilas simon Reports D.
o. the Court says: "A foreign State we'll entitled
ton Of its rights In the case Of Huit &Co VS. The
King Of Spain Dow \ Clark, p 100, Lord Redesdale,
in giving the opinion, says; ~ have no doubt but TO
there would DO right without remedy He sues here
on behalf Of his subjects and il foreign sovereign was
not allowed to do that, the refusal might be Of
war There is no ground for the notion that foreign
sovereign cannot in the courts Of this country Ii
appears to clear that he sue, and IL would DO
monstrous injustice he could not also King Of
Spain VS.. Hultt Il Wilder, Clark and Finnily y.
33s. In the case Of the King Of Spain Oliver, 2
right OF foreign government to ia the courts Of
the United States And the "a section Of the third
gives jurisdiction to the courts of the United States
in where foreign States are parties thereby Civ
ing right TO such foreign States TO bring q suit.
But II Is claimed If foreign State has right to bring
sut in the courts Of The United States that such foreign
State must bring such suit in the Supreme Court Of the
United States and tho 18th section Of the Judiciary Act
Of 1889 is relied upon to sustain this proposition That
section ia as follows -. That the Supreme Court shall
have exclusive jurisdiction OF all controversies Of civil
natuIe, when Stats u party, except between state
and is citizens and except also between State
aud citizens of othcr States aliens in which latter
case il shall have original but not exclusive urisdic-
tlon That secton Of tho Judiciary act applies to inc
Sees Of this Unon and not 10 foreign States There Is
nothing therefore, 10 deprive foreign State Of the right
TO bring suit in proper before tho District Court
But It Is claimed that If such foreign State has right
10 tring suit in this court, such suit can only DO
brought in particular way, and that this particular
way Is by the duly accredited minister Of such foreign
state in this country The claim is that where there il
public minister from foreign government in whose
knoviedged by the government upon whom such de-
msnd IA made, such demand should be recognized
uness il be made by and through such foreign minister
That our government would not receive nor heed any
demand Of right made by smother government, unless
H. 1t.