Davis v. Packard
32 U.S. 276 (1833)

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U.S. Supreme Court

Davis v. Packard, 32 U.S. 7 Pet. 276 276 (1833)

Davis v. Packard

32 U.S. (7 Pet.) 276

Syllabus

The record of the proceedings in this case, brought up with the writ of error to the Court for the Correction of Errors of the State of New York, showed that the suit was commenced in the supreme court of the State of New York, and that the plaintiff in error, who was Consul General of the King of Saxony, did not plead or set up his exemption from such suit in the supreme court, but, on the cause's being carried up to the Court for the Correction of Errors, this matter was assigned for error in fact, notwithstanding which the Court of Errors gave judgment against the plaintiff in error. The Court of Errors of New York having decided that the character of consul did not exempt the plaintiff in error from being sued in the state court, the judgment of the Court of Errors was reversed.

As an abstract question, it is difficult to understand an 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, other public ministers and consuls, and the Judiciary Act of 1789 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 offenses enumerated in the act.

It has been repeatedly ruled in this Court that the Court can look only to the record to ascertain what was decided in the court below.

Matter assigned in the appellate court as error in fact never appears upon the record of the inferior court; if it did, it would be error in law. The whole doctrine of allowing in the appellate court the assignment of error in fact grows out of the circumstance that such matter does not appear on the record of the inferior court.

If a consul, being sued in a state court, omits to lead his privilege of exemption from the suit, and afterwards, on removing the judgment of the inferior court to a higher court by writ of error, claims the privilege, such an omission is not a waiver of the privilege. If this was to be viewed merely as a personal privilege, there might be grounds for such a conclusion, but it cannot be so considered; it is the privilege of the country or government which the consul represents. This is the light in which foreign ministers are considered by the law of nations, and our Constitution and law seem to put consuls on the same footing in this respect.

If this privilege or exemption was merely personal, it can hardly be supposed that it would have been thought sufficiently important to require a special provision in the Constitution and laws of the United States. Higher considerations of public policy doubtless, led to the provision. It was deemed fit and proper that the courts of the government, with

Page 32 U. S. 277

which rested the regulation of foreign intercourse, should have cognizance of suits against the representatives of such foreign government.

The action in the supreme court of New York against the defendant was on a recognizance of bail, and it was contended that this was not an original proceeding, but the continuance of a suit rightfully brought against one who was answerable to the jurisdiction of the court in which it was instituted and in which the plaintiff in error became special bail for the defendant, and therefore the act of Congress did not apply to the case. Held that the act of Congress being general in its terms, extending to all suits against consuls, it applied to this suit.

A suit on a recognizance of bail is an original proceeding. A scire facias upon a judgment is to some purposes only a continuation of the former suit. But an action of debt on a judgment is an original suit.

An action of debt on a recognizance of bail may be brought in a different court from that in which the original proceedings were commenced.

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 recognizance 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 recognizance 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 $4,538.20 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

Page 32 U. S. 278

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 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 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 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. 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

Page 32 U. S. 279

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 judgment, Mr. Davis brought the case before this Court by a writ of error.

At 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. 31 U. S. 6 Pet. 41.

Page 32 U. S. 280

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