Charles Davis v. Isaac Packard, Henry Disdier William Murphy

• Decision Date: 01 January 1833
• Citation: 32 U.S. 276,7 Pet. 276,8 L.Ed. 684
• Parties: CHARLES A. DAVIS, Consul-General of the King of Saxony, Plaintiff in error, v. ISAAC PACKARD, HENRY DISDIER and WILLIAM MURPHY, Defendants
• Court: U.S. Supreme Court

32 U.S. 276

7 Pet. 276

8 L.Ed. 684

CHARLES A. DAVIS, Consul-General of the King of Saxony, Plaintiff in error, v. ISAAC PACKARD, HENRY DISDIER and WILLIAM

MURPHY, Defendants.

January Term, 1833

ERROR to the Court for the Correction of Errors of the State of New York. The defendants in error, Isaac Packard and others, instituted a suit in the supreme court of judicature of the state of New York, against Isaac Hill and Ralph Haskins; and at August term 1824, of that court, Charles A. Davis, the plaintiff in error, entered into a recognisance as special bail of Isaac Hill. Judgment having been obtained against the defendant, Isaac Hill, in that suit, the plaintiffs in the same, Isaac Packard and others, brought an action of debt on the recognisance, in the same court, against Charles A. Davis, as bail, to January term 1830. To this action, Mr. Davis appeared by attorney, and upon several issues of fact and in law, judgment was rendered against him, at May term of the court, for $4538.20 debt, and $469.09 damages and costs. Upon this judgment, Mr. Davis prosecuted a writ of error to the court for the correction of errors for the state of New York.

In the court for the correction of errors, the plaintiff assigned as error, 'that he, the said Charles A. Davis, at the time of the commencement of the suit of the said Isaac Packard, Henry Disdier and William Murphy against him the said Charles A. Davis, was, and every 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 law 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 cognisance 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 he may be restored to all things which he hath lost by occasion of the judgment aforesaid.'

To this assignment of errors, the defendants in the court for the correction of errors filed the following plea: '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 kind 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. But because the court aforesaid is not yet advised what judgment to give of and concerning the premises, a day, therefore, is given to the said parties here, wheresoever, & c., to hear their judgment thereon, for that the said court is not yet advised thereof.'

'Whereupon, the said court for the correction of errors, after having heard the counsel for both parties, and diligently examined and fully understood the cause assigned for error, and inspected the record and process aforesaid, did order and adjudge, that the judgment of the supreme court be in all things affirmed; that the plaintiff take nothing by his writ, and that the defendants go without day; that the defendants in error recover against the plaintiff in error their double costs in defending the writ of error in this cause, to be taxed, and also interest on the amount recovered, by way of damages, and that the record be remitted, &c. Therefore, it is considered by the said court for the correction of errors, that the judgment of the supreme court aforesaid be and the same is hereby in all things affirmed. It is further considered, that the said defendants in error recover against the plaintiff in error their double costs, according to the statute in such case made and provided, to be taxed, in defending the writ of error in this cause, and also interest on the amount recovered, by way of damages. And hereupon, the record aforesaid, as also the proceedings aforesaid in this same court for the correction of errors in the premises had, are to the said supreme court, wheresoever the same may be held, remitted, &c.' Upon this jdugment, Mr. Davis brought the case before this court by a writ of error.

The the January term 1832, the counsel for the defendants in the writ of error, R. Sedgwick, moved to dismiss the writ of error for want of jurisdiction. White, having appeared for the plaintiff in error, the motion, after argument, was dismissed. 6 Pet. 41.

The case now came on for argument on the following points presented for the consideration of the court, by White, for the plaintiff in error. 1. The plaintiff in error being a foreign consul, the supreme court of New York had no jurisdiction of the case. 2. The defect of the jurisdiction was not cured by appearing and pleading to the action. 3. The court for the correction of errors in New York erred, in not receiving the plea of the plaintiff in error, and in giving a judgment against him. 4. The judgment of the court for the correction of errors, being the highest court of the state, and against the rights, privilege and exemption claimed by a consul, ought to be reversed and set aside; because it was in violation of the constitution and laws of the United States.

Mr. White cited 6 Pet. 45; 2 Laws of New York 166, 601; 1 Binn. 138; 6 Wheat. 558; 12 Johns. 493, 469; 4 W. C. C. 482; 3 Dall. 475; 9 East 447; 2 Pet. 157; 3 Ibid. 202, 207. To show that the action of debt on a recognisance of bail was an original suit, he cited, 3 Petersdorff's Abr. 210; 3 Salk. 205; 4 T. R. 355; 2 Saund. 71 a; Tidd's Pract. 1099; 2 Archbold's Pract. 86; 2 Marsh. 232; 1 Dow. & Ry. 126; 4 Eng. Com. Law 360; 16 Ibid. 126; 18 Ibid. 212; 1 Chitty 713; 7 Johns. 318; 9 Ibid. 80; 12 Ibid. 459; 13 Ibid. 424.

R. Sedgwick submitted to the court a printed argument for the defendants in error, in which the following points were urged for the consideration of the court. 1. The court of errors had not jurisdiction of the question raised by the writ of error to this court. 2. No decision was made by that court upon any question mentioned in the 25th section of the judiciary act. He cited Tidd's Pract. 1055-6; 3 Wend. 180; 2 Cow. 50; 2 Wend. 145; 4 Ibid. 179; 5 Revisors' Reports 69.

The suit below having been on a recognisance of bail, was properly brought in the supreme court. 3 Maule & Selw. 385-6; 6 T. R. 365; 1 Mason 436; 3 Dall. 475. The recognisance of bail is the commencement of the proceedings in regard to the bail. The court then had jurisdiction over the defendant, it not appearing that he was then consul; and this jurisdiction could not be taken away by any subsequent appointment of the defendant as consul. 4 W. C. C. 482; 3 Dall. 475. The defendant below should have pleaded to the jurisdiction. Bac. Abr. Error, K. 5; Mills v. Martin, 19 Johns. 33; Moo. & Malk. 375; 6 Wend. 329; 1 Pet. 498.

THOMPSON, Justice, delivered the opinion of the court.

The writ of error in this case brings up for review a judgment recovered against the plaintiff in error in the court for the correction of errors, in the state of New York. The case was before this court at the last term (6 Pet. 41), on a motion to dismiss the writ of error for want of jurisdiction. This court sustained its jurisdiction under the 25th section of the judiciary act, on the ground, that the decision in the state court was against the exemption set up by the plaintiff in error, viz., that he being consul-general of the King of Saxony, in the United States, the state court had not jurisdiction of the suit against him. The principal difficulty in this case seems to grow out of the manner in which the exemption set up by the plaintiff in error was brought under the consideration of the state court, and in a right understanding of the ground on which the court decided against it.

As an abstract question, it is difficult to understand, on what ground a state court can claim jurisdiction of civil suits against foreign consuls. By the constitution, the judicial power of the United States extends to all cases affecting ambassadors, and other public ministers and consuls, &c. And the judiciary act of 1789, § 9 (1 U. S. Stat. 76), gives to the district courts of the United States, exclusively of the courts of the several states, jurisdiction of all suits against consuls and vice-consuls, except for certain offences mentioned in the act. The record sent up with the writ of error in this case, shows that the suit was commenced in the supreme court of the state of New York; and that the plaintiff in error did not plead or set up his exemption in that court, but on the cause being carried up to the court for correction of errors, this matter was assigned for error in fact; notwithstanding which the court gave judgment against the plaintiff in error.

It has been argued here, that the exemption might have excluded by the court for the correction of errors, on the ground that it was waived by not having been pleaded in the supreme court. It is unnecessary to decide definitively whether, if such had been the ground on which the judgment of the state court rested, it would take the case out of the revising power of this court, under the 25th section of the...