The record-union., 1894-02-24
courts, l see no escape from the conclu-

courts, l see no escape from the conclu-
sion that
THIS COURT HAS JURISDICTION
In the case at bar. In Davis VS.. Packard
q Peters, in 1883, the court ousted the
state court of jurisdiction upon the ex-
press ground that such jurisdiction, as the
law then stood, was forbidden by the
judiciary Act of 1879. 1t said: "We
cannot but consider the judgment of the
state court in direct opposition to the Act
OF Congress, which excludes the jurisdic
tIon OF the State courts in suits against
Consuls."
!hird-If it may still be urged that the
privilege of the foreign Government to
nave It's consular agents exempt from
suIts IN state courts remains intact and
unaffected by Federal legislation, it would
seem to be sufficient answer that by the
existing consular convention between the
nIted States and the Netherlands rati
Hed In 1879, it is mutually and expressly
provided, with reference to the consular
oThces OF both the high contracting
parties, that consular officers who en-
gage In commerce shall not plead their
consular privileges to avoid their COM
mercial liabilities
Onless 1t can be successfully main
tanned that the defendants business of
farming and disposing of agricultural
products Is not embraced within the
broad term OF being engaged in COM
nefce, within the meaning of the treaty,
ne is ylolator of the treaty; tor that in
strument Is not merely waiver of priyi-
!ege by the Government of the Neither
4andS, put Is an express command laid
upon its Consul that he
SHALL NOT PLEAD IT'S PRIVILEGE.
1t IN effect says the respective Govern
ments viii not, in any case where its
Consul IS sued upon commercial liza
blllty, plead the privilege nor permit the
consul to plead it, either for himself or
for his Government.
In 1urtherGnce Of this intention of the
two Governments that in his character
and relations as business man the Con-
SUI should be treated as business man,
II may be noted that the convention also
provides that when a Consular officer is
engaged III business the papers relating
70 tne Consulate shall be kept in a sep
arate lnclOsure and apart from the papers
pertaining to his business" and the "local
authorities" shall under no pretext ex-
anime or seize such papers. Being en-
gagged in any lawful business is what is
meant by this treaty by being engaged in
commerce..
SIMPLY AGAINST THE LAND.
Fourth-Without regard to any of the
pose OF the dispute. The action is spe-
cial proceeding in the nature OF proceed
ing IN rem. against the lands of the de-
1endant for the purpose Of collecting q
special assessment in the nature of tax.
The manner of enforcing this assess
ment by making the same a lien upon the
land and by selling the land to satisfy the
lien Is provided in Section 3466 of the
Political Code. There can be no judgment
over for any deficiency against the owner.
The action to collect the tax is mani
testify an action IN rem. 1t is cOntended,
however, that this action, not being a di-
rect action to collect the tax but being
directly for the purpose only of establish
ing the validity of the tax, is a personal
action against the owner. l can see no
force in the distinction. The owner is
subjected no more to personal response
bility by this action than he is by the
action to collect the tax.
THIS ACTION Is A PART OF THE MACHIN-
ERY PROVIDED
For the collection of the tax, and, in all
its characteristics. is proceeding IN rem.
This will be seen by an examination of
Section 1881, in which the contents of
the complaint and answer are prescribed,
with description of the lands, etc. 1t is
also made summary proceeding by pro-
viding that ''all actions prosecuted under
the provisions OF this section shall be
tried without unnecessary delay, and
shall have precedence of all other actions
except PROBATE and criminal actions"
MAY ANSWER ANEW.
The defendants plea is therefore over
ruled. AS he is not in default, and as the
plea appears to have been made in good
faith, and as he has asked leave, in case
the plea should be overruled, to answer
to the merits OF the action, it is ordered
that he have leave to file and serve a
further answer in five days from notice
hereof.