Mr Selden admitted, that if the simple action, required by the mandate of this court, of the court of errors, was, to revise their judgment, the proceedings of that court did not conform to it. But they have gone further, they have fully admitted the law, as decided by this court; and have given the party an opportunity to avail himself of it, by claiming his privilege in the proper court. If the court of errors had only revised their judgment, they would have left the judgment of the supreme court to remain before them.
Mr Chief Justice MARSHALL inquired, whether the court of errors might not, by revising their judgment, which had affirmed the judgment of the supreme court, have revised that of the supreme court, and corrected it.
Mr White, in reply, insisted, that by the constitution and laws of New York, the court of errors had authority to direct an issue of fact to be tried before that court.
He suggested, that if the action of the court of errors in this case, shall be sustained by this court, the courts of the states of the union, may so model their proceedings, as to defeat the supervising authority of this court.
Mr Chief Justice MARSHALL delivered the opinion of the Court.
This is a writ of error to a judgment rendered by the court for the correction of errors of the state of New York.
The defendants in error had obtained a judgment against Charles A. Davis in the supreme court of New York, which was removed by writ of error into the court for correction of errors. In that court the said Davis assigned for error, that he was, when the suit was instituted, and has ever since continued to be consul-general of his majesty the king of Saxony, in the United States, and ought, according to the constitution and laws of the United States, to have been impleaded in the said supreme court of the United States, or in some 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. The defendants in error replied, that there was no error; and the court for the correction of errors affirmed the judgment of the supreme court.
This last judgment was brought before this court in conformity with the twenty-fifth section of the judicial act, and this court being of opinion 'that the said Charles A. Davis being consul-general of the king of Saxony, exempted him from being sued in the state court, and that by reason thereof, the judgment rendered by the court for the correction of errors, was erroneous; therefore, it was considered, ordered and adjudged, that the judgment of the said court for the correction of errors should be, and the same is reversed; and that this cause be remanded to the said court for correction of errors, with directions to conform its judgment to this opinion.'