King of Spain v. Oliver

WASHINGTON, Circuit Justice. We think that this rule must be made absolute; for it would be strange, if a court whose duty it is to superintend the conduct of its officers, should not have the power to' inquire by what authority an attorney of that court ■undertakes to sue or to defend, in the name of another — whether that other is a real or fictitious person — and whether its process is used for the purpose of vexation or fraud, instead of that for which alone it is intended. The only question can be, as to the time and manner of calling for the authority, and as to the remedy, which are in the discretion of the court, and ought to be adapted to the case. This right, which is inherent in all courts, may be taken away, or qualified by express statute; or additional cautions may be superadded; in which latter view, we consider the different statutes and the act of assembly of this state, which were referred to. These laws do no more than punish the attorney for failing to file his warrant at a particular time; and yet, if filed at any time afterwards when required, it would hardly be contended that the penalties would incur. The object of the court, in the exercise of its superintending power over its officers and its process, is to protect tile parties, although it may go further, and punish the officer for misbe-haviour. The statute fixes a particular time when the warrant is to be filed, - in relation to the penalty imposed upon the attorney. But the court, not deriving its right to interpose under the statute, will at the threshold inquire, by what authority the suit is instituted; and being satisfied, either by the production of the warrant of attorney, or by any other, e'ven parol evidence, that the attorney acts by authority, will not in a summary way arrest the proceedings. If it were necessary to wait until the declaration were filed, the interference of the court would but half effect the object of it. The plaintiff is not compellable to file his declaration at ,the first term. The defendant may be held to high bail, by an attorney who may be-able to show cause of action, and yet not be authorized to sue; or if no bail be required, it may be the wish and the interest of the defendant to question the plaintiff, and to bring the cause to an early issue. Yet, if the plaintiff's attorney file his declaration, and refuse to file his warrant also, the defendant must wait under a rule to plead, possibly, until the succeeding term, in order to call for the warrant of attorney; for, after issue joined, it seems by the case cited from Dallas, it is too late to ask for the rule. Upon the reason and nature of the case, therefore, and the positive decision of the supreme court of this state, in one instance, and the tacit admission of the practice in many others, it is the opinion of the court, that the plaintiff’s attorney must produce his authority for bringing this suit. First rule made absolute. In relation to the second rule, it was contended by Hare and Tilghman, in favour of the rule, that the municipal courts of one country cannot entertain jurisdiction of a [579] suit brought by a foreign sovereign, more especially one who is not acknowledged by the government of the country where the suit is brought; and still stronger, where the sovereign in whose name the suit is brought, is not in possession of his government. If so, ■'it is proper for the court to stay the proceedings at once, and not put the defendant ,to plead. They cited, Tidd, Prac. 470; 9 Ves. 347; 10 Ves. 352; 11 Ves. 273; [M’Carty v. Nixon] 1 Dall. [1 U. S.] 77; 2 Ld. Raym. 1533; 3 Ves. 424. Rawle and J. R. Ingersoll, contra, cited Rose v. Horneby, (in the supreme court); 2 Ves. Jr. 56; 1 Ves. Jr. 371; 3 Term R. 731; 3 Brown, Ch. 292. BV THE COURT. Without going through •the English cases which have been cited, it is .•sufficient to observe, that the constitution of the United States gives jurisdiction to the ■courts ’ of the United States, in cases where foreign states are parties; and the judicial •act gives jurisdiction to the circuit courts, in .all cases between aliens and citizens. Wheth*er this spit can be supported, if prosecuted in the name of the king of Spain,. generally, or whether Ferdinand VII. can support the .action before he is acknowledged by our government, are questions not proper to be decided on motion. Rule discharged.