
    Lawrence De Give v. The United States.
    
      On the Proofs.
    
    
      The claimant is a citizen of Belgium. JHe brings suit under the Abandoned, or captured property act, and proves the law of Belgium, allowing suits to be brought against that government. The commissioner talcing testimony neglects to propound to the claimant’s witness the usual question prescribed by the rules as to his interest. But the defendants cross-examine the witness on the same point.
    
    I. The Belgian government accords to citizens of the United States the right to prosecute claims against it in its courts. There exists in Belgium no special, exceptional, or extraordinary jurisdiction of courts respecting suits against the Government, and the same course of procedure is applicable to cases where the Government is defendant, and the same tribunals aro competent, as if tbe suit were between citizens. There is no statute law allowing such suits, but it is a general principle of tbe unwritten law that the Government is amenable before the courts as an ordinary debtor.
    II. Where a commissioner taking testimony neglects to ask a claimant’s witness the question prescribed by the rules respecting his interest in the cause of action, the defect is cured by the defendants cross-examining on the same point.
    
      Messrs. Hughes, Denver & Pech for tbe claimant.
    This is an. action brought for eleven bales of sea-island cotton, captured in Savannah, Georgia, in December, 1864.
    The claimantis a foreigner by birth, and a citizen of Belgium.
    It is proved that he was Belgian consul, and did all that he could to keep Belgian citizens out of the confederate service; he was a Union man in sentiment.
    The deposition of Victor Faidcr proves that the courts of Belgium are open to citizens of the United States for the prosecution of suits against that government, and therefore the claimant in this case is not excluded from suing here by the provisions of the second section of the “act regulating judicial proceedings in certain cases,” &c., approved July 27,1868.
    The ownership, seizure, and conversion of the property being established, and also the foreign nativity and the neutrality of the claimant, as well as his right to appear kytkis court, a judgment is asked for in his favor for the net proceeds of eleven bales of sea-island cotton.
    
      Mr. Alexander Johnston for the defendants.
   Nott, J.,

delivered the opinion of the court:

This is an action brought to recover the proceeds, in tbe Treasury, of eleven bales of cotton captured at Savannah. The proceeds are alleged to be $4,400.

The suit illustrates anew the error of the assumption that immunity from civil actions is an inherent right of civilized governments, and that it is only through the liberality of legislation that such suits are permitted.

The claimant beiqg a citizen of Belgium, it is necessary for him to show that the government of Belgium “ accords to citizens of the United States the right to prosecute claims against ” it “ in its courts.” {Act 27th July, 1868, 15 Stat. L., p. 243, § 2.) The law of Belgium is proven by the testimony of Mr. Yictor Faider, of Staten Island, New York, a gentleman who, for fifteen years, practiced law in the Court of Appeals of Brussels, who studied in the University of Brussels, and was graduated as doctor of laws by the national board of examination. The law and practice of Belgium are most clearly stated in the words of the witness:

Question. What remedy, if any, is given in the courts, that is, in the judicial tribunals of that country, in favor of persons holding claims against the government ?

“Answer. Absolutely-the same as between two private citizens.

“ Question. Are cases against the government introduced before the same courts and under the same forms of procedure as between citizens ?

“Answer. There exists in Belgium no special, exceptioual, or extraordinary jurisdiction of courts, and the same course of procedure is applicable to cases where the Government is a party, and the same tribunals are competent, just as if the cases were between private citizens.

Question. Does the right to sue the Government result from any statute or positive written law, or from some general principle which prevails.in the absence of any positive restriction ?

“Ansicer. There is no positive statute or written law regulating that matter. It is a general principle that the government in its diverse branches is amenable before the courts as an ordinary debtor, and that it, the government, has the right to sue just as a private citizen.

Question. Does the same right to sue the government extend to aliens, including citizens of the United States, as to citizens of the Kingdom of Belgium ®

Ansicer. There is no law establishing, in such cases, any difference between aliens and Belgian citizens. The rights of the former are quite the same as those of the latter, and of course the citizens of the United States are enjoying the same rights and privileges.

“ Question. How are decrees against the Belgian govern- ' ment enforced?

Answer. By the same officers of the law and by the same modes of execution as in cases decided between citizens.

Question. Describe the method of beginning a suit against the Belgian government.

u Answer) Tbe lawyer writes out tbe demand and gives it to a huissier, or constable, and tbis officer leaves tbe summons against tbe government of Belgium in tbe bands of tbe minister or secretary of tbe public department that is sued or in tbe bands of a clerk having tbe receiving of those summons in bis special charge. Tbe formula generally used in designating tbe government is in these terms, in demanding as well as in defending : ‘ The Belgian Government, represented hy the minister/ or secretary of the proper department. This summons contains a statement of the causes of action. It is signed by the huissier, or constable. Tbis is in duplicate; tbe officer leaves a copy with the minister, and the original is registered by the recorder and then returned to the lawyer.

u Question. What happens if the government does not appear on the day named in the summons 1

“ Answer. The govenment is condemned by default to pay the full amount of the demand and the costs, the same as a private party.

“ Question. Does the government ever object to the jurisdiction of the court ?

uAnstoer. If the government is summoned before the wrong, tribunal it will object to the jurisdiction; that is, if summoned in a commercial case before a civil tribunal, it will object.

“ Question. Is there any way in which the government can refuse to be sued on any particular claim ?

uAnswer. None at all, that I know, and I have never heard of any case in which the government has not answered a summons delivered to the proper person.

“ Question. Please describe the manner of collecting a judgment against the government of Belgium.

“Answer. When a judgment has been obtained against the government, that judgment is authenticated by the clerk of tbe court and signed by the president of the court. There are then three steps : first, signification of the judgment to the proper department of the government; then, second, a summons to execute the judgment within a time specified; and, third, the execution in the regular way, by levy or attachment.

u Question. Out of what funds in the treasury are judgments paid %

“ Answer. Each department has in its special budget a special appropriation called ‘ Funds for unprovided expensesf and the department of public works, on account of its special business, has a special appropriation for covering tbe condemnation it may incur.

u Question. Suppose a judgment is obtained against tbe government when tbe appropriation applicable to it is exhausted 1

u Answer. In that case, tbe chief of tbe department covers tbe amount of tbe judgment with a draft or warrant upon tbe general treasurer, who pays tbe draft, and then at tbe next session of tbe legislature be includes tbe amount of tbe deficiencies in bis budget, under a special article, and so tbe accounts are made correct between tbe treasury and the departments.

Question. Did you ever know tbe property of tbe government to be seized on execution 1

11 Answer. Never, to my knowledge.

u Question. Is there any legal process by which tbe minister may be compelled to pay a judgment or to draw a draft on tbe general treasurer for that purpose ?

“ Ansioer. I have never known a case in which tbe Government refused to pay, but there, as a general principle, tbe same modes of execution are applicable to tbe government as well as to private parties.

Question. Is there any proceeding in Belgium by which a court, at tbe instance of a private party, issues its order to a minister of tbe government commanding him personally to do an act which is required by law- ?

“ Answer. No, sir. Tbe court has no more -jurisdiction after its presiding magistrate has given tbe order of execution on tbe foot of tbe judgment.

ci Question. On your cross-examination I understood you to state that you never knew tbe Belgian government to refuse to pay a judgment rendered against it; but if it should refuse to pay such a judgment, can tbe huissier, or constable to whom execution is issued, levy and seize on tbe government property to satisfy that judgment?

u Answer. Undoubtedly. Tbe case has been decided several times against tbe communal or provincial corporations, and . in their own capacity they are identical with tbe government itself.

Question. Explain more fully what this communal corporation is ?

Answer. In Belgium each village or city constitutes a commune, as each, province; they are individually considered as persons, and they can sue, be sued, and have execution enforced against them as private persons. They are independent corporations under the general law of the government.”

We are of the opinion that the testimony clearly and incontrovertibly establishes the right of the claimant to bring his action in this court.

It appears from the evidence in the case that he bought eleven bales of sea-island cotton on the 20 th of July, 1864, at Atlanta, the cotton then being in Savannah. Some question is raised as to the bona fides of the transaction, but the vendor swears positively that the sale was in good faith, and we see little reason to doubt that it was. Some question is also raised as to the regularity of the vendor’s deposition, insomuch as the commissioner did not propound the usual question prescribed by the rules of the court as to his interest, if any, in the action. But this defect is cured by the defendant’s cross-examination, which goes to the same point.

The cotton was seized at Savannah, and ten bales came to the possession of the military authorities. The neutrality of the claimant is proven to our satisfaction.

The judgment of the court is that the claimant recover the proceeds, in the Treasury, of ten bales' of sea-island cotton captured at Savannah, being $231.79 a bale, amounting in the aggregate to $2,317.90.  