The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-04-28

AdtSnfhsd 10 Saturday.
The Jurisdiction of the Cnited states courts
Foreign C0nsuls.
United erArbs CIRCUIT COUNT.
,.. Before Hon. Chief Justice Nelson.
NOTION WRIT Or Ns ExsAr. e
Arsn 21--,'oha 6rahap Edsa S.lsctsn AID 02es.--
Mason, G. J.A bill has been filed by the complainant In
this case, Ia set aside hills uf Sale Of two steam veeeb-
Ocean Bird and r.. lawrenceand also u third Of the
United states, which claimed TO be Of the aggregate
value of about 100000, and that the vessels bc
restored 10 The complainant, In ben thereof, that
their value DE paid TO him by Meyer s+ocse whom
the bills Of sale oxecutea Tho complainant charges
that the transactions out Of loan Of money upon
usurons interest," that the b.n Was 100000 for four
months; that the Oh $l26 900 agreed be paid
for tho same; and, that the vessels were pledged COLA
tera security the payment and the form Of bills Of
sac adopted for the purpose Of covering the usurious
Tho defendant, eiucken insists that although there
an application by complainant for loan Of monsy
upon the SHIPS was refused and that the transacton
resulted IN purchase Of them by hs firm for sos CO.,
without any condition Qualification, and that the pr
chase money ha been paid that the vessels have since
been sold at Cuba for Sl9 76 S. and out Of his pcs
session and out OF the jurisdiction Of the Court and that he
has been obliged to make large advances and above
the TO third persons TO remove hens the
vessels existing at the time Of the purchase. Meyer
Of the purchasers is abroad out Of the jurisdiction OF
Court and cannot therefore, be made a party The bill
filed is against Sucen alone except parties who have
direct interest in the controversy There has been de
murrer TO the bill admitting the facts stated, but present
ing certain legal objections TO the right OF complainant TO
the relief claimed. motion rs now made by the
painant for writ OF against Sucken founded
about to break up hs pSence ths c,y and remove me
from the country The facts up defence 10
the bill are derived from the papers opposing this motion
These papers admit that the defendant rs about 10
embark for Europe but II Is insisted that Is only for
temporary residence and that Is designed close his
business establishment the city lie not state how
% that he hQg
offered his house and furniture for sale, with tho intention
Of making other arrangements for residence in the city
The papers also disclose that the defendant Consul
raj in the United States for the Kingdom OF Hanover and
aEo Consul for the Duke OF Wemar the State Of
New York These substantially the facts forth in
opposition TO the notion and the first question presented
Is whether not the Court has Jurisdiction OF the sse for
not then Of course order for the writ sought he
obtained can be granted The question has not been de-
Cded by any Judicial authority and seems purpose
~ waived by the Supreme Court in the of the United
States VS.. Ortega III Wheat s67 See also no 10 that
case (4es 49, Rent Com. 1916 Curtis Com sec los But
Notwithstanding this apparent doubt II Is certain that the
trainers OF the Judiciary net OF 1889 understood
the consttuton AZ admitting jurisdiction over foreign
consub 10 be vested in federal Courts other than
the Supreme Court The argument against the iurisdic-
ton Of this Court is that the constitution has vested
sve jurisdiction in the case in the Supreme Court OF the
United States, and that this suit should have been
fnenced in that Court The last clause Of section OF
ucle Of the constitution declares that in all affect
ing ambassadors, other public ministers and consal
those in which State shall be party, the Supreme Court
shall have original lurisdicton." Congress distbut
ing and regulating this grant Of jurisdiction, provided 10
section L. OF the Judiciary act that the Supreme Court
should have exclusive Jurisdiction all cases against am
bassadors, d. and original but exclusive jurisdiction
Sin which a consul or VICE consul shAil he yary'thus
clearly r' =. .s ss. ,ii .s grant ~ " 'ns Constitution
Again the grant az original jurisdiction the Supreme
Cmrt \ The sane IN the caes (entionad In Tho previous
clause IL the conttion) "in which STATE shall be par
y a. in the Of a consul. Those sre:-l Con
uoversies between two OF more States; 2 Between State
and citizens Of another Ste; g. Between STATE and 70
reign States and Between state and sub
jects OF foreign sate,hat ~, aliens. Now, the grant
Of original Jurisdiction be exclusive In the Supreme Court
In the Of consul, II equally exclusive the four
above enumerated for the grant Is in the
clause and ca the same terms And yet Ia the 18Th sec
Of The Judiciary already referred - provided
that the supreme Court shall have exclusive jurisdiction
&C where State is party, &c, except between state
and ciiz 81 other State aliens, In which latter
II shall have original but exclusive. jurisdiction Ac.
cordmg the argument, "a. whole tins exception would
be unconstitutional, a. the cases mentioned saouh have
been vested exclusively IA the Supreme Court And, again,
what - t more explicit In respect % the practical con
stucon of the Trainers Of the judiciary act, many Of
whom were eminent mcmb,fs Of Tho convention that
formed the constitution the ninth section provides that
tho District Court OF the United shall iulIsdc
ton, exclusive Of The Of The States OF 1euits
against CcnsuE or Vice Consuls, Nc In tho mCo of NIL
this legislative Interpretation by the fathers Of tho ccnst
tuition and aoquscenco therein since 1859, cannot any
that the Jurisdiction IN ths y exclusively IN he SUI
eme Court but am satisfied that may be conferred upon
The inferior tribunals ~ the federal judiciary Being pressed
for tine have stated simply The grounds Of this conclu
SION without giving moro az large the IN support
Of " has been aho objected that admitting the iurs-
dcton Is not exclusive In the Supreme Court s that Il
Stairs The lih section Of the judiciary act provides that
the Circuit Courts shall have original copniznnce concur
rent Tie state Courts ~ suits between citi,eD Of the
state whefo the suit Is Brought ind citizen of another
State Tho case before falls directly within This provi
sion. 1t sad, hovcvsr, that the jurisdiction clnnot DO
concurrent with the STATE Court ~ thai court has no rs
o,on " the case Il having been excluded by force Of the
OH section, already referred Bnt the uc sug
geuou Is that the phraseoogy Is designed simply 10
~ Jurisdiction ~ the aie Court whore exists u has been
Did so 1.-THE Jurisdiction ~ the case s Rot in the supreme
Court, ana may b. vested In Inferior courts Il has beu
expressly vested In the District Coa which y true But
there l. nothing In the provision comforting ~ upon that
court that excludes the jurisdiction 81 pse Circuit
Court. ! am sa,ishod, therefore, hat his Court has
iurKdirtipn ~ hear and decide thi. motor, and
also the Out " which It has arisen. Tho next
ground taken In ssstng the motion 4 tst the mature Of
The demand IN sui, " nc in which, acoordng 10 Tie
usage and practice OF the Ccur writ Of The Kind In
qucsuon viii be granted. The demand must be equit
able debt or rccunialy claim aud certain, capable Of
IN u. nature of claim for damage, which canno,
be regarded no debt until tbs decree, viii not bay foun
dsuon Tor ue WI, In he cas- Of fa's ". Holm, q
sale and the bill, among other filings claimed recovery
fer fsudulenuy delaying the sale Of the goods, whereby
hoes accrued and 90 which motion Tor ezsai
made and bail marked At Is eco Lord IIdon observed
'my difficulty Is whether thai is no, too large Tbo
writ only soes wherc The deb, sworn 70; e damages
only are 70 be recovered that will po do. You cannot
have for any loss which may have accrued by keeping
the rocds out OF The markell Again be rcnarked, "ua
nc. 10 that which may become dets. when a reoo'
very In damages has sscertalned what IL due
Nov, vishn nis principle, am Of opinion, that the pre-
sent case u one In wt, Il would BE- proper 20 grant
The wnt can see 20 debt pccunsry demand set up
ngant the defendant Tho foundation of The bill Is thai
be has gs possession Of The srs under contract VOID
on the grWlnd usury, and That under The law q New
York, which admit must govern, the cJfnpana Is
entitled 70 .e s contract aside, and TO have return q
the popei or In leu thereof damages the extent Of
its value The complainant clas further eocount Of
the earning q The vessels; bu, this simply mode Of
arriving ut the damages sustained from the wrongful pos
eSion and detention Of them. The claim Is in substance,
that The defendant wrong dcer IN taking The property
and converting ~ his own uee There "a 10 debt or
duty act fcith IN tho bin but that which exis every
OF wrongful conversion 81 another mans property
Tbs nos DEBT OF duty, or pecunary demand, within the
meaning OF he rule u must be arising upon CONTRACT
express or Implied, between The parties, and which think
essential 10 lay foundation fcr The proceeding agree
that N made out winch would Justify ts somewhat
extreme remedy, IL the the demand In
such warranted ia ap,,icaiion