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court for the correction of errors may proceed to examine the record and proceedings aforesaid, and the matters aforesaid above assigned for error.

Under this informal state of the pleadings in the court for the correction of errors, how is this court to view the record? The most reasonable conclusion is, that the court disregarded matters of form, and considered the answer of the defendants in error as a regular joinder in error. And this conclusion is strengthened when we look at the form of the entry of judg"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," &c. affirms the judgment.

ment.

The only cause assigned for error was, that Charles A. Davis was consul-general of the king of Saxony; and the conclusion must necessarily follow, that this was not, in the opinion of the court, a sufficient cause for reversing the judgment. If it had been intended to say it was not error, because not pleaded in the court below, it would probably have been so said. Although this might not perhaps have been strictly technical, yet as the court gave judgment on the merits, and did not dismiss the writ of error, it is reasonable to conclude, that the special grounds for deciding against the exemption set up by the plaintiff in error, would have been in some way set out in the affirmance of the judgment.

If any doubt or difficulty existed with respect to the matters of fact set up in the assignment of errors, the court for the correction of errors was, by the laws of New York, clothed with ample powers to ascertain the facts.

The statute (2 Laws N. Y. 601) declares, "that whenever an issue of fact shall be joined upon any writ of error returned into the court for the correction of errors, and whenever any question of fact shall arise upon any motion in relation to such writ or the proceedings thereon; the court may remit the record to the supreme court, with directions to cause an issue to be made up by the parties to try such question of fact, at the proper circuit court or sittings; and to certify the verdict thereupon to the court for the correction of errors."

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No such issue having been directed, we must necessarily conclude that no question of fact was in dispute; and as the record contains no intimation that this matter was not set up in proper time, the conclusion would seem irresistible, that the court for the correction of errors considered the matter itself, set up in the assignment, as insufficient to reverse the judgment. This being the only question decided in that court, is the only question to be reviewed here and viewing the record in this light, we cannot but consider the judgment of the state court in direct opposition to the act of congress, which excludes the jurisdiction of the state courts in suits against consuls.

But if the question was open for consideration here, whether the privilege claimed was not waived by omitting to plead it in the supreme court, we should incline to say it was not. 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 the privilege or exemption was merely personal, it can hardly be supposed that it would have been thought a matter 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 which rested the regulation of all foreign intercourse, should have cognizance of suits against the representatives of such foreign governments. That it is not considered a personal privilege in England, is evident from what fell from lord Ellenborough in the case of Marshall v. Critico, 9 East, 447. It was a motion to discharge the defendant from arrest on common bail on the ground of his privilege under the statute 7 Ann, ch. 12, as being consul-general from the Porte. Lord Ellenborough said, this is not a privilege of the person, but of the state he represents, and the defendant having been divested of the character

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in which he claims that privilege, there is no reason why he should not be subject to process as other persons; and the motion was denied on this ground.

Nor is the omission to plead the privilege deemed a waiver in England, as is clearly to be inferred from cases where application has been made to discharge the party from execution, on the ground of privilege under the statute of Ann, which is considered merely as declaratory of the law of nations; and no objection appears to have been made, that the privilege was not pleaded. 3 Burr. 1478, 1676.

It may not be amiss barely to notice another argument which has been pressed upon the court by the counsel for the defendants in error, although we think it does not properly arise upon this record,

It is said the act of congress does not apply to this case, because, being an action upon a recognizance of bail, it is not an original proceeding, but the continuation of a suit rightfully commenced in a state court.

The act of congress is general, extending to all suits against consuls; and it is a little difficult to maintain the proposition, that an action of debt upon recognizance of bail is not a suit.

But we apprehend the proposition is not well founded; that it is not, in legal understanding, an original proceeding.

It is laid down in the books, that a scire facias upon a recognizance of bail is an original proceeding, and if so, an action of debt upon the recognizance is clearly so. 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.

It is argued, that debt on recognizance of bail, is a continuation of the original suit, because, as a general rule, the action must be brought in the same court. Although this is the general rule, because that court is supposed to be more competent to relieve the bail when entitled to relief, yet, whenever from any cause the action cannot be brought in the same court, the plaintiff is never deprived of his remedy, but allowed to bring his action in a different court, as where the bail moves out of the jurisdiction of the court. This is the settled rule in the state of New York; and it is surely a good reason for bring

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ing the suit in another court, when the law expressly forbids it to be brought in the same court where the original action was brought. 2 Wil. Saund. 71, a; Tidd's Practice, 1099, 6th ed.; 2 Archb. Prac. 86, book 3, ch. 3; 7 Johns. 318; 9 Johns. 80; 12 Johns. 459; 13 Johns. 424; 1 Chit. Rep. 713; 18 Common Law Rep. 212, n. a.

But the reversal of the judgment in this case is put on the ground that from the record we are left to conclude, that the court for the correction of errors decided that the character of consul-general of the king of Saxony, did not exempt the plaintiff in error from being sued in the state court. Judgment reversed.

This cause came on to be heard on the transcript of the record from the court for the trial of impeachments and correction of errors for the state of New York, 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.

UNION BANK OF GEORGETOWN v. GEORGE B. MAGRUDER.

Whether certain facts in reference to an alleged notice to the indorser, and demand of payment of a promissory note by the drawer, amounted to a waiver of the objection to the want of demand and notice, is a question of fact, and not matter of law for the consideration of the jury. The court are entirely satisfied with their former decision in the case of the Union Bank of Georgetown v. Magruder, 3 Peters's Rep. 87.

ERROR to the circuit court of the United States for the county of Washington, in the district of Columbia.

The case is fully stated in the opinion of the court.

For the plaintiffs in error, Mr Key cited, Wynn v. Thornton, 12 Wheat. 183; Lonsdale v. Brown, 4 Wash. C. C. R. 149; 4 Dall. 109; 3 Peters, 187; 7 East, 231; Chitty on Bills, 234, 202, 211, 236; 1 Esp. Rep. 303; 15 East, 222; 2 Greenleaf's Rep. 207.

Mr Coxe, for the defendant in error, cited, 1 Dane's Abridg. 118; Bell v. Morrison, 1 Peters, 360; 12 Wheat. 186; 2 T. R. 713; 3 Bibb, 102; 1 Saunders on Plead. and Ev. 117, 118, 119, 141; 3 T. R. 635.

Mr Justice STORY delivered the opinion of the Court.

This cause was formerly before the court upon a writ of error to the circuit court of the district of Columbia, sitting for the county of Washington. The judgment then rendered was reversed (Magruder v. Union Bank of Georgetown, 3 Peters's Rep. 87); and a venire facias de novo awarded; upon which a new trial having been had, the cause is again before us upon a bill of exceptions taken by the plaintiffs at the last trial.

The action is brought by the plaintiffs, as indorsers, to recover the contents of a promissory note made on the 8th of November 1817, by George Magruder, deceased, whereby he promised, seven years after date, to pay to George B. Magruder, the defendant, six hundred and forty-three dollars and twenty-one cents. with interest, for value received, and which was indorsed before it became due by the defendant to the plaintiffs.