[Vattier v. Hinde.]

from the circuit court of the United States for the district of Ohio, and was argued by counsel: on consideration whereof, this court is of opinion, that to entitle themselves to the decree which was pronounced in their favour, the plaintiffs in the circuit court ought to have stated their case truly in their bill as it now appears on the record, and that after the amended answer was filed, showing the deed from Thomas S. Hinde and Belinda his wife to Alexander Cummings, the plaintiffs ought to have obtained leave to amend their bill, so as to introduce into it the reconveyance from Alexander Cummings to Thomas S. Hinde, on the trusts agreed on between the parties, instead of alleging this new matter in their replication. This court is further of opinion that the circuit court ought not to have pronounced its decree, and that for this cause the decree ought to be reversed, and is hereby reversed, so far as it directs a conveyance to be made by the appellant, Charles Vattier, and the cause is remanded to the circuit court, with directions to permit the plaintiffs to amend their bill.

204

CHARLES A. DAVIS, CONSUL-GENERAL OF THE KING OF SAX-
ONY, PLAINTIFF IN ERROR, V. ISAAC PACKARD, HENRY DISDIER
AND WILLIAM MURPHY, DEFENDANTS.

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 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 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, 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 offences 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 plead 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 privi-
lege, there might be grounds for such a conclusion, but it cannot be so con-
sidered; it is the privilege of the country or government which the consul re-
presents. 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 pro-
vision 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 *which rested the regulation of
foreign intercourse, should have cognisance of suits against the repre-
[*277
sentatives of such foreign government.
The action in the supreme court of New York against the defendant, was on a re-
cognisance of bail, and it was contended that this was not an original proceed-
ing, 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 recognisance 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 recognisance of bail may be brought in a different court from that in which the original proceedings were commenced.

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

7p 276 41f 735

[Davis v. Packard et al.]

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 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 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 ever since hath continued to be, and yet is, consul-general of his majesty the king of Saxony, in the United States, duly ad*278] mitted 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 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 afore

[Davis v. Packard et al.]

said 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 causes 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 [*279 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, Mr. R. Sedgwick, moved to dismiss the writ of error for want of jurisdiction. Mr. White having appeared for the plaintiff in error, the motion, after argument, was dismissed. 6 Peters' Reports, 41.

The case now came on for argument on the following points presented for the consideration of the court, by Mr. 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.

[*280

Mr. White cited, 6 Peters, 45; 2 Laws of New York, 166, 601;

[Davis v. Packard et al.]

1 Binney, 138; 6 Wheat. 558; 12 John. 493, 469; 4 Wash. C. C. Rep. 482; 3 Dall. 475; 9 East, 447; 2 Peters, 157; 3 Peters, 202, 207.

To show that the action of debt on a recognisance of bail was an original suit, he cited, 3 Petersdorf's Abridg. 210; 3 Salk. 205; 4 Term Rep. 355; 2 Saunders, 71, a.; Tidd's Pract. 1099; 2 Archbold's Pract. 86; 2 Marsh. 232; 1 Dow. and Ryl. 126; 4 Eng. Com. Law Rep. 360; 16 Eng. Com. Law Rep. 126; 18 Eng. Com. Law Rep. 212; 1 Chitty's Rep. 713; 7 John. 318; 9 John. 80; 12 John. 459; 13 John. 424.

Mr. 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 twenty-fifth section of the judiciary act. Cited, Tidd's Pract. 1055, 1056; 3 Wend. 180; 2 Cowen, 50; 2 Wend. 145; 4 Wend. 179; 5 Revisors' Reports, 69.

The suit below having been on a recognisance of bail, was properly brought in the supreme court. Cited, 3 Maule and Sel. 385, 386; 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 defendant as consul. Cited, 4 Wash. C. C. R. 482; 3 Dall. 475.

The defendant below should have pleaded to the jurisdiction. Cited, Bac. Ab. Error K. 5; Hills v. Martin, 19 John. 33; Mad. and Geld. 375; 6 Wend. 329; 1 Peters, 498.

Mr. Justice THOMPSON delivered the opinion of the court.

The writ of error in this case brings up for review, a judg *281] ment 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 Peters, 41,) on a motion to dismiss the writ of error for want of jurisdiction. This court sustained its jurisdiction under the twenty-fifth 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