Opinion of the Court. not exist to the same extent in the case of designation for special purposes or temporarily, but it is one purely for the receiving government to insist upon or waive at its pleasure. The presumption, therefore, would ordinarily be against Mr. Baiz's contention, and, as matter of fact, we find that when in 1886, he was appointed chargé d'affaires of the Republic of Honduras to the government of the United States, Mr. Secretary Bayard declined receiving him as the diplomatic representative of the government of that country, because of his being a citizen of the United States, and advised him that: "It has long been the almost uniform practice of this government to decline to recognize American citizens as the accredited diplomatic representatives of foreign powers. The statutory and jurisdictional immunities and the customary privileges of right attaching to the office of a foreign minister make it not only inconsistent, but at times even inconvenient, that a citizen of this country should enjoy so anomalous a position." And in a subsequent communication rendered necessary by a direct question of Mr. Baiz, the Secretary informs him "that it is not the purpose of the department to regard the substitutionary agency, which it cheerfully admits in your case, as conferring upon you personally any diplomatic status whatever." This correspondence disposes of the question before us. The objection which existed in 1886 to the reception of Mr. Baiz as chargé d'affaires ad hoc or ad interim, or according to him any diplomatic status whatever, whether temporary or otherwise, existed in 1889; and it is out of the question to assume that the State Department intended to concede the diplomatic status between January 16 and July 10, 1889, upon the request of Señor Lainfiesta that Consul General Baiz might be allowed to be a medium of communication during his absence, which it had refused to accord to the Republic of Honduras itself. It is evident that the statement of the Assistant Secretary, October 4, 1889, was quite correct, that "the business of the legation [of Guatemala] was conducted by Consul General Baiz, but without diplomatic character.” It is objected that we ought not to have allowed these Opinion of the Court. official papers to come before us, but should have prohibited the District Court from exercising jurisdiction, because the evidence that established it had not all been before that court when the question was raised; but the rule governing this class of cases involves no such consequences. The district judge was of opinion that inasmuch as there were two kinds of direct evidence which would show that the defendant was a "public minister," to wit: (1) A certificate of the Secretary of State that he was such, was received as such and was exercising such functions; or (2) proof of the exercise by the defendant of "the principal diplomatic functions," under some one of the titles of diplomatic office, as recognized by our statutes and the law of nations; and as such direct evidence had not been furnished, and the plaintiff was not required to produce his counter evidence on a motion like that under consideration instead of at the trial, he was justified in retaining jurisdiction until the issue raised by the pleadings was regularly determined. But to this latter suggestion, counsel for petitioner answered in argument: "At any rate, in this court, exercising its appropriate jurisdiction to entertain an application for a writ of prohibition or mandamus, the respondent here is called upon to produce any evidence that exists to countervail the petitioner's proof of his privilege." This is undoubtedly the correct view. The question here is whether the District Court had jurisdiction, and not whether its order refusing to set aside the service of summons and the subsequent proceedings in the action, and dismissing the same, should be reversed. The practice in prohibition was formerly to file a suggestion, an affidavit in support of which was required where the prohibition was moved for upon anything not appearing upon the face of the proceedings. Upon a rule to show cause, if it appeared to the court, on cause shown, that the surmise was not true, or not clearly sufficient to ground the prohibition upon it would be denied, otherwise the rule would be made absolute: or, if the matter were doubtful, the party was ordered to declare, and issue joined on such declaration was regularly tried, being in the nature of an issue to inform the conscience Opinion of the Court. of the court. 2 Sellon's Practice, 313, 321, 325. And in mandamus, if the case were not governed by the return to the alternative writ, but a traverse of the return was allowed, issues were made up and a trial had. If the matter can be disposed of upon the rule to show cause, that course may be pursued, but the applicable principles are the same. The alleged want of jurisdiction depends upon questions of fact. It was purely discretionary whether this evidence should be admitted at the time it was presented; and in a proceeding. involving the inquiry under consideration, it was plainly our duty to permit it to come in, the petitioner being afforded, as he was, the opportunity for explanation and the introduction. of such other evidence as he chose to produce. In Ex parte Hitz, Petitioner, 111 U. S. 766, which was an application for a writ of certiorari, commanding the Supreme Court of the District of Columbia to certify to this court an indictment and the proceedings thereunder, on the ground that, when the indictment was filed and when the offences therein charged were committed, he was the diplomatic representative of the Swiss Confederation, the court directed a preliminary inquiry, and, in doing so, Mr. Chief Justice Waite said: "As it is conceded that the petitioner is not now in the diplomatic service of Switzerland, and was not when all the proceedings in the Supreme Court of the District of Columbia subsequent to the indictment were had, counsel are directed to request the Secretary of State to certify whether John Hitz was at any time accredited to and recognized by the government of the United States as public or political agent or chargé d'affaires of the Republic of Switzerland, and if so, for what period of time, and up to and including what date." The counsel having complied with that request, the court upon receiving the information as to what the records of the department showed, dismissed the petition. Regarding the matter in hand as, in its general nature, one of delicacy and importance, we have not thought it desirable to discuss the suggestions of counsel in relation to the remedy, but have preferred to examine into and pass upon the merits. We ought to add that while we have not cared to dispose 135 432 L-ed 251 136 130 135 432 L-ed 231 158 52 135 432 L-ed 231 100f 365 Syllabus. of this case upon the mere absence of technical evidence, we do not assume to sit in judgment upon the decision of the executive in reference to the public character of a person claiming to be a foreign minister, and therefore have the right to accept the certificate of the State Department that a party is or is not a privileged person, and cannot properly be asked to proceed upon argumentative or collateral proof. Our conclusion is, as already stated, that the District Court had jurisdiction, and we accordingly discharge the rule and Deny the writs. NEW YORK ELEVATED RAILROAD COMPANY v. FIFTH NATIONAL BANK. 135 432 L-ed 231 104f 649 ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE No. 106. Argued November 13, 1889. Decided May 5, 1890. A party cannot take exception to a ruling under which a trial has been conducted by his procurement or with his acquiescence. In an action by the owner of a building and land abutting on a street in the city of New York, against a company which had constructed an elevated railroad and station-house over and along the street, the plaintiff claimed damages for the injury to the use and enjoyment of his property by obstructing the passage of light and air and diminishing the rents, and also for the permanent injury to the market and rental value of the property. Evidence, offered by the plaintiff, of the value of the building, before and after the construction of the railroad, was excluded by the court upon the defendant's objection. The defendant contended that the plaintiff's damages should be limited to the date of bringing the action. But the court ruled that they might be recovered to the time of the trial; and evidence was introduced in accordance with that ruling without objection or exception by the defendant to the admission of the evidence, or to the ruling under which it came in. Held, that the defendant could not except to a subsequent refusal of the court to admit evidence that the value of the plaintiff's property had been increased by the construction of the railroad; nor to an instruction allowing damages to be recovered to the time of trial; nor to the refusal of an instruction, requested by the defendant after the charge, that the recovery could be had only for the permanent injury to the plaintiff's property. Statement of the Case. An abutter on a street in the city of New York may recover against a company constructing an elevated railroad and station-house in front of his building, damages for the discomforts and inconveniences in the occupation of the building, caused by the erection of the defendant's structure, independently of the running of trains thereon. THIS was an action brought March 5, 1880, by a national bank against an elevated railroad company to recover damages for the construction of the defendant's track and stationhouse in front of the plaintiff's banking-house at the southwesterly corner of Third Avenue and Twenty-third Street in the city of New York. The complaint claimed damages for the interference with the use, enjoyment and value of the plaintiff's building, and the obstruction of light and air, by the construction of the defendant's track and station; and for the interference with the use, comfort and enjoyment of the building by the plaintiff, its officers, servants and tenants, caused by the noise, steam, smoke and noxious smells attending the running of the trains, and for the consequent lessening of the rents and profits of the building; and also for the permanent injury to the use of the building and to its market and rental value, by the construction of the track and station, and by the jarring and concussion attending the running of the trains. The answer denied that the plaintiff had any interest in Third Avenue and Twenty-third Street, except as shared with the public at large; denied the other allegations of the complaint, except that it admitted the erection of the elevated railway and station; and alleged that these structures were authorized by and in conformity with the statutes of New York of 1850, c. 140; 1866, c. 697; 1867, c. 489; 1868, c. 855; 1875, cc. 595, 606. A verdict recovered by the plaintiff at a trial in February, 1885, was set aside and a new trial ordered. 24 Fed. Rep. 114. At the second trial, in June, 1886, it appeared that Third Avenue and Twenty-third Street were laid out many years ago under the statute of New York of 1813, c. 86, § 178, by which the city acquired the title in fee of public streets, VOL. CXXXV-28 |