# Davis v. Packard (33 U.S. 312)

* related portals: Supreme Court of the United States.
* sister projects: Wikidata item.
United States Supreme Court
33 U.S. 312
Davis v. Packard
The judgment was affirmed.
[Syllabus from pages 312-314 intentionally omitted]
IN error to the court for the correction of errors of the state of New York.
This case was before the court on a writ of error at January term 1832. A motion was made to dismiss the writ of error, on the ground that it did not appear on the record of the proceedings in the case before the supreme court of New York, from which court it had been taken to the court for the correction of errors, that the plaintiff in error was consul of the king of Saxony. The court refused the motion, considering that the official character of the plaintiff was sufficiently apparent in the proceedings, 5 Peters 41. Afterwards, at January term 1833, 7 Peters 276, this case came on for argument. The court decided, that 'the record of the proceedings, 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, against the plaintiff in error, who was consul of the king of Saxony, and who 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 gave judgment against the plaintiff in error. The court of errors having decided, that the character of consul did not exempt the plaintiff in error from being sued in the state court, the judgment is reversed.'
The following mandate was issued to the court for the trial of impeachments and correction of errors, of the state of New York.
'The United States of America, ss. The president of the United States of America, to the president of the senate of the state of New York, the senators, chancellor and justices of the supreme court of the said state, being the judges of the court for the trial of impeachments and correction of errors, holden in and for the said state of New York. Greeting:
'Whereas, lately, in the court for the trial of impeachments and correction of errors, holden in and for the state of New York, before you, or some of you, in a cause between Charles A. Davis plaintiff in error, and Isaac Packard, Henry Disdier and William Morphy, defendants in error; the judgment of the said court for the trial of impeachments and correction of errors, was in the following words, to wit: '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 case, and also interest on the amount recovered, by way of damages,' as by the inspection of the transcript of the record of the said court for the trial of impeachments and correction of errors, which was brought into the supreme court of the United States by virtue of a writ of error, agreeably to the act of congress in such case made and provided, fully and at large appears. And whereas, in the present term of January in the year of our Lord one thousand eight hundred and thirty-three, the said cause came on to be heard before the said supreme court, on the said transcript of the record, and was argued by counsel; on consideration whereof, it is the opinion of this court, that the plaintiff in error, being consul-general of the king of Saxony, exempted him from being sued in the state court; by reason whereof, the judgment rendered by the court for the trial of impeachments and correction of errors, is erroneous. Whereupon, it is ordered and adjudged by this court, that the judgment of the said court for the trial of impeachments and correction of errors be, and the same is hereby reversed; and that this cause be, and the same is hereby remanded to the said court, with directions to conform its judgment to the opinion of this court.
'You, therefore, are hereby commanded, that such further proceedings be had in said cause, as according to right and justice, and in conformity to the opinion and judgment of said supreme court of the United States, and the laws of the United States, ought to be had, the said writ of error notwithstanding.
'Witness the honourable John Marshall, chief justice of said supreme court, the second Monday of January in the year of our Lord one thousand eight hundred and thirty-three.
WILLIAM THOMAS CARROLL,
Clerk of the Supreme Court of the United States.'
At the April session 1833 of the court of errors of the state of New York, the following proceedings took place, as stated in the records of that court.
'The court for the correction of errors having heard the counsel for both parties, and diligently examined and fully understood all and singular the premises, and inspected as well the record and proceedings aforesaid as the mandate of the said supreme court of the United States: it is thereupon declared and adjudged by this court that a consul-general of the king of Saxony is, by the constitution and law of the United States, exempt from being sued in a state court. It is further adjudged and declared that the supreme court of the state of New York is a court of general common law jurisdiction, and that by the laws of this state, this court has no jurisdiction, power, or authority, to reverse a decision of the said supreme court for any error in fact, or any other error than such as appears upon the face of the record and proceedings of the said supreme court, and that no other errors can be assigned or regarded as a ground of reversal of judgment of the said supreme court, than such as appears upon the record and proceedings of the said supreme court, and which relate to questions which have actually been brought before the justices of that court for their decision thereon, by a plea to the jurisdiction of that court or otherwise; and that this court was not authorized to notice the allegations of the said Charles A. Davis, assigned for error in this court, that he was consul-general of the king of Saxony, or to try the truth of the said allegation, or to regard the said allegation as true; and that, by the laws of this state, the replication of the defendant to an assignment of errors, that there is no error in the record and proceedings aforesaid or in the giving of the judgment of the supreme court, was not an admission of the truth of any matter assigned as error in fact, or which was not properly assignable for error in this court; and that if there was no error upon the face of the record and the proceedings in the supreme court, the defendant in error was entitled to a judgment of affirmance according to the laws of this state, any matter assigned for error in fact, to the contrary notwithstanding. And it is further declared and adjudged that, by the laws of this state, if there is any error in a judgment of the said supreme court, or in the proceedings, which is properly assignable for error in fact, the party aggrieved by such error may sue out a writ of error, coram vobis, returnable in the said supreme court, upon which the plaintiff in error may assign errors in fact. And if such errors in fact are admitted, or are found to be true by the verdict of a jury upon an issue joined thereon, the said supreme court may revoke their said judgment; and that, for any error in the judgment of the said supreme court upon the said writ of error coram vobis, this court has jurisdiction and authority upon a writ of error to the said supreme court to review the said last mentioned judgment, and to give such judgment in the premises as the said supreme court ought to have given. It is therefore the opinion of this court that, although the said Charles A. Davis, the plaintiff in error in this cause, might have been the consul-general of the king of Saxony, and as such was not liable to be sued in the state court, yet inasmuch as the fact that he was such consul no where appeared in the record of the judgment of the said supreme court, the defendant in error is entitled to the judgment of this court, affirming the said judgment of the said supreme court. But the defendant in error having, upon the filing of the said mandate of the said supreme court of the United States, applied to this court to dismiss the writ of error to the said supreme court of this state, it is therefore ordered and adjudged that the said last mentioned writ of error be quashed: and it is further ordered and adjudged that the said defendants in error recover against the plaintiff in error their costs in this court, according to the statute in such case made and provided, to be taxed, and also interest on the amount of the judgment of the court below, by way of damages; and that the proceedings be remitted to the said supreme court of this state, &c.'
The defendant prosecuted this writ of error.
The case was argued by Mr White, for the plaintiff in error; and by Mr Selden, for the defendants.
Mr White stated, that the question before this court was, whether the mandate from this court has been carried into effect.
It has been decided here, that a state court cannot take cognizance of a suit against a consul. That his exemption from the jurisdiction of a state court, may be assigned as error in the court of errors of the state of New York. The court of errors have assented to the exemption; but they have left the judgment of the supreme court of the state in force. That court have determined, after the reception of the mandate of this court, that they would dismiss the writ of error to the supreme court of the state; although they had, before the case was brought here, decided not to do so.
In the case of Cohens v. The State of Virginia, 6 Wheat. 264, 5 Cond. Rep. 110, this court asserted the jurisdiction of the supreme court of the United States to revise a judgment against a foreign minister, entered in a state court. Consuls have the same privileges that belong to ambassadors and other public ministers. In that case, the jurisdiction of the court is declared to be original, 'in all cases affecting ambassadors, other public ministers and consuls.' The jurisdiction is exclusive.
The court of errors of New York should have vacated the judgment entered there, and the party would have obtained his costs. By the mode of proceeding adopted by the court, the plaintiff in error is subjected to the whole of the costs. The question between the parties has become, principally, one of costs, as the greater part of the debt has been paid.
Mr White cited the Revised Statutes of New York, vol. 5, p. 51; vol. 2, p. 166; 17 Johns. Rep. 473; 14 Johns. 517; 16 Johns. 353; 8 Cowen 661, 701; Paine and Davis's Practice 475.
Mr Selden, for the defendants, contended, that the court of errors of New York could not exercise any jurisdiction to carry into effect the judgment of this court; and therefore they remanded the case to the supreme court, where the errors might be, and would be corrected.
The jurisdiction of the court of errors could not be increased by any mandate from this court. All that court could do was, to allow the party to go before the supreme court, and there plead his privilege; and if in the proceedings of that court, upon the plea, there should be error in their judgment, the case might be taken again before the court of errors, and there corrected. This court will not undertake to decide what are the powers of a state court. They will not entertain such questions, unless a construction shall be given to the laws establishing or regulating those courts, that will defeat the powers of this court.
The state court says, there is a court in which the party may have the benefit of his plea, and if that court decides wrong, the court of errors will correct the decision. Will this court claim to controvert the construction, by the court of errors of New York, of the powers and jurisdiction of the courts of that state? This is not necessary for the full and efficient exercise of its jurisdiction by this court; and the harmony of the judicial system of the federal and state courts will be promoted by avoiding the assertion of such a claim.
Although a consul has, by the decision of this court, a privilege of exemption from suit in the court of a state, and this is the privilege of his government; yet if the consul omits to plead this exemption, he is not entitled to an action of trespass against an officer who may execute process, founded on a judgment rendered in a suit, in which the plea of privilege was omitted. His government may complain, but he cannot.
The court of errors have said, the plaintiff in error, as the consul of the king of Saxony, has the privilege he asserts; and if he is not allowed in the proper court to do so, it will be done in that court. The court of errors do not, therefore, undertake to controvert the decision of this court.
Suppose this court had said, a venire de novo should be issued in the court of errors, and that court should have decided that no such proceedings could be had before it, and refused to issue the writ. Would the same have been other than what was proper.
The decision referred to in 17 Johns. 473, was before the present constitution of the court of errors. It is declared in the present constitution of New York, that the court of errors can never inquire into any fact which arises after the judgment; but must send the case to a court, where the fact may be inquired into.
Mr Justice THOMPSON. Would not the court of errors obey the mandate of this court, which only required that court to revise their judgment? They are asked to do no more.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse