Charles Davis, Consul General of the King of Saxony, Plaintiff In Error v. Isaac Packard, Henry Disdier and William Morphy, Defendants In Error

• Court: United States Supreme Court
• Citation: 8 L.Ed. 312,31 U.S. 41,6 Pet. 41
• Parties: CHARLES A. DAVIS, CONSUL GENERAL OF THE KING OF SAXONY, PLAINTIFF IN ERROR v. ISAAC PACKARD, HENRY DISDIER AND WILLIAM MORPHY, DEFENDANTS IN ERROR
• Decision Date: 01 January 1832

31 U.S. 41 6 Pet. 41 8 L.Ed. 312 CHARLES A. DAVIS, CONSUL GENERAL OF THE KING OF SAXONY, PLAINTIFF IN ERROR v. ISAAC PACKARD, HENRY DISDIER AND WILLIAM MORPHY, DEFENDANTS IN ERROR. January Term, 1832

ERROR to the court for the correction of errors of the state of New York.

The now defendants in error, Isaac Packard, Henry Disdier and William Morphy, brought an action of debt, on a recognizance

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of bail, against the now plaintiff in error, Charles A. Davis, in the supreme court of judicature of the state of New York; the writ of capias ad respondendum in which action was returnable in January term 1830. The defendant, Mr Davis, appeared by attorney, and pleaded several pleas in bar, upon which issues were taken, both in fact and in law. The issues were determined against the defendant, and final judgment was rendered against him at the May term of the said supreme court, for four thousand five hundred and thirty-eight dollars and twenty cents debt, and four hundred and sixty-nine dollars and nine cents damages and costs.

Upon that judgment a writ of error was brought to the court for the correction of errors,—being the highest court of the state of New York,—and the plaintiff in error assigned error in the following words:

'Afterwards, to wit, on the first day of September in the year of our Lord one thousand eight hundred and thirty, before the president of the senate, senators, and chancellor of the state of New York, in the court for the correction of errors, at the city hall of the city of New York, comes the said Charles A. Davis, by Andrew S. Garr, his attorney, and says, that in the record and proceedings aforesaid, and also in giving the judgment aforesaid, there is manifest error in this, to wit, that he, the said Charles A. Davis, before and at the time of the commencement of the suit of the said Isaac Packard, Henry Disdier and William Morphy, against him the said Charles A. Davis, was, and ever since hath continued to be, and yet is consul-general of his Majesty the king of Saxony, in the United States, duly admitted and approved as such by the president of the United States. That being such, he ought not, according to the constitution and laws of the United States, to have been impleaded in the said supreme court, but in the district court of the United States for the southern district of New York, or in some other district court of the said United States, and that the said supreme court had not jurisdiction, and ought not to have taken to itself the cognizance of the said cause; therefore, in that there is manifest error: and this he, the said Charles A. Davis, is ready to verify:—wherefore, he prays that the judgment aforesaid, for the error aforesaid, may be revoked, annulled, and altogether held for nothing, and that

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he may be restored to all things which he hath lost by occasion of the judgment aforesaid.'

To the foregoing assignment, the following joinder in error was put in:

'And the said Isaac Packard and others, defendants in error, before the president of the senate, senators, and chancellor of the state of New York, in the court for the correction of errors, at the city hall of the city of New York, by David Dudley Field, their attorney, come and say, that there is no error in the record and proceedings aforesaid, nor in the giving of the judgment aforesaid, because they say, that it nowhere appears, by the said record, proceedings or judgment, that the said Charles A. Davis ever was consul of the king of Saxony; and they pray that the said court for the correction of errors may proceed to examine the record and proceedings aforesaid, and the matters aforesaid, above assigned for error, and that the judgment aforesaid may be in all things affirmed.'

The cause was argued upon the assignment and joinder, and the court for the correction of errors subsequently affirmed the judgment of the court below, with double costs, to be paid by the plaintiff in error.

Mr Sedgwick moved to dismiss the writ of error, for want of jurisdiction in this court.

He stated, that the error now assigned is, that the plaintiff is a consul of the king of Saxony, and was so at the time the action was instituted against him. This allegation was not made in the supreme court; and did not appear until the assignment of errors in the court of errors.

The question is presented to this court, whether a consul who submits himself to the jurisdiction of a state court, by entering into a recognizance of bail in an action depending in such a court, can take advantage of a want of jurisdiction without pleading it: can such a party plead his privilege in a court of errors, who has neglected to plead it in the courts below?

When this case, came before the court of errors, the plaintiff in error here, filed a plea stating his privilege as consul, and claimed that the courts of the United States had exclusive jurisdiction in suits against ministers and consuls.

No question came before the court of errors involving either

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the construction or the validity of any law of congress, or of any commission issued under the authority of such law. The court of errors had no right to receive or try such a question.

This position will be established by the decisions of the courts of New York, as to the jurisdiction of the court of errors. That court is only an appellate court.

To sustain the right of the court of errors to take cognizance of the plea of the defendant there, it must be shown that the court has jurisdiction of errors in fact. By the provisions of the constitution of the state of New York establishing that court, in all cases where writs of error are prosecuted to the supreme court, the judges of the supreme court are required to assign the reasons of their judgment in writing. It is only upon the judgment of the court below the court of errors acts; and if the questions presented to the court of errors have not been submitted below, there can be nothing for the revision or action of the highest court. And this is the construction which has been given by the legislature to the constitution. Cited, 1 Revised Laws of New York. 1st section, 5th article of the Constitution of the State of New York. Ibid. 165, section 4. 2 Cowen, 50. 2 Wendell, 144. Also the opinion of chancellor Walworth in this case, MS.

If the court of errors had no jurisdiction of the matters set forth in the plea, the validity of no part of the constitution of the United States, or of any act of congress, could have been drawn in question...