Dainese v. Allen — 3 Abb. Pr. 212

Majority

p. 212

DAINESE against ALLEN

Supreme Court, First District; General Term,

January, 1867.

Headnote

Injunction.—Jurisdiction of American Consul Abroad.

An injunction may be granted by a State court to restrain persons from prosecuting a claim before an American Consul abroad, where the Consul has not jurisdiction of the proceedings instituted before him.

Neither the treaties of 1830 and 1860, between the United States and Turkey, nor the Acts of Congress respecting Consuls operate to confer upon American Consuls residing in Turkey, jurisdiction to adjudge civil causes.

Appeal from an order continuing an injunction.

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' This action ■ was brought by Francis Dainese to obtain an injunction restraining the defendants, the members of the firm of R. H. Allen & Co., from prosecuting proceedings against him, before the defendant Charles Hale, an American Consul at Alexandria; Egypt.

The plaintiff is a citizen and resident of the District of Columbia. In 1863, while at Alexandria, he, through an agent in New York, ordered certain goods sent to Egypt. The defendants Allen & Co., merchants in New York, undertook to fill the orders. They sent goods to Egypt, and claim that Dainese became indebted to them on account thereof to the amount of about ¿61,000.

In November, 1864, Dainese having then left Egypt to return to the United States, the defendants Allen & Co., through an agent in Egypt, commenced proceedings in the nature of a civil suit before the defendant Hale, as United States Consul, to recover the balance alleged to be due to them. The Consul, on the application of the agent of Allen & Co., issued an attachment against the goods of Dainese and took possession of them, notifying debtors not to pay him. Notice of these proceedings was given to Dainese in Washington in August, 1866, and he was notified to appear before the Consul in Egypt and defend the suit in October, 1866.

A temporary injunction was granted by Justice Babnabd, which was afterwards ordered, by Justice Clebke, to be continued. ■ From that order defendants Allen & Co., now appealed.

Eaton, Tailer & Newell, for appellants.

Charles F. Blake & S. J. Glassey, for respondent.

1. Even if the judicial authority was vested by the conjoint consent of the Government of the United States, and that of the Ottoman Porte in the American Consul at Alexandria, still it would not be the judicial power contemplated in the third article of the Constitution of the United States.

The power contemplated by the Constitution is that which

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is possessed and' exercised by regularly organized tribunals within the territory of the United States; in which actions are prosecuted and justice administered by judges especially appointed, according to an established procedure, and in a regular and formal manner.

The authority given to executive officers to exercise judicial functions incidentally or occasionally, is not that judicial power •to which the third article of the Constitution has reference. Therefore, a State court will not refrain from interfering with persons prosecuting a claim before an American Consul in a foreign country, where the consul has no jurisdiction of such claim, or exercises an authority to which he has no right.

2. As a general rule, if a party has an adequate remedy at law a court ox equity will not interfere by injunction. But it is sometimes difficult to determine whether he has an adequate remedy, particularly where an injury may be suffered through the instrumentality of judicial proceedings in a foreign country; and, therefore, as Lord Brougham says in Carron Iron Company v. McLaren (5 Ho. of L. R., 438), “ if a suit instituted abroad appears ill-calculated to answer the ends of justice, the court of chancery will restrain the foreign action.”

3. At the time the proceedings under consideration were commenced before the consul, he had no jurisdiction in civil cases.

There are only two treaties, I believe, between the United States and the Ottoman Porte in which the latter has delegated any portion of judicial authority to the consuls of the former.

The treaty of 1830, does undoubtedly grant to them, in certain cases, criminal jurisdiction, but nothing more.

The treaty of 1860, has the following provision: “ It is moreover expressly stipulated that all rights, privileges and immunities, which the Sublime Porte now grants or may hereafter grant to or suffer to be enjoyed by the subjects, ships, commerce or navigation of any other foreign power, shall be equally granted to, exercised and enjoyed by the citizens, vessels, commerce and navigation of the United States of America.”

It is contended because the consuls of other nations have

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exercised jurisdiction in civil cases in Turkey, that this provision delegates the same jurisdiction to American Consuls. It does not contain a single word relative to consular authority of any description. It relates solely to privileges allowed to private individuals, and to commerce and navigation. Before we can decide that a nation parts with any of her sovereign authority, the language by which it is transferred should be direct and unequivocal. From the language quoted, it is evident that no such design was ever the subject of negotiation.

Nor do I think Congress has conferred any such authority upon consuls; although if it had, the authority . would be ineffectual without the concurrence of the Ottoman Porte. As we have seen that this concurrence has not been yielded, it is scarcely necessary to examine the acts of Congress relating to this subject with any particularity.

By the act of 1860 (12 Stat. at L., 72), judicial power is conferred on consuls in criminal matters, and in civil cases, with such powers as consuls in China possess as far as the same are permitted by the laws of Turkey or its usages in its intercourse with the Franks or other Christian nations.

By the treaty with China the jurisdiction of consuls in civil cases is confined to questions between citizens of the United States resident in China.

Neither party in the proceedings before the consul in Alexandria resided there at the time they were commenced, or at any time since.

It is unnecessary to pursue this examination any further, as we have seen that the Ottoman Porte has never yielded any jurisdiction in civil cases to American Consuls.

On the whole, I think this injunction ought to be continued. We have jurisdiction over the persons of the defendants. It is a proper case for the exercise of that jurisdiction; and the prosecution of the proceedings before the consul at Alexandria is calculated to be productive of gross injustice.

Order affirmed, all the judges concurring, with costs.