Hall v. Young

20 Mass. 80

Opinion

Parker C. J.

delivered the opinion of the Court to the following effect. If it had been shown upon a plea to the jurisdiction in the original action, that Mr. Manners was a consul, a judgment against him would have been erroneous, and the bail would be discharged. But that fact does not appear on the record in that action, and the agreement to be defaulted was a waiver of the want of jurisdiction.² It is said that all courts are to take notice of a person’s being a consul, on account of his exequatur ; but he may be a consul one day and cease to be such the next, and yet his exequatur may not be taken from him. When therefore he is sued, if he would avail himself of his privilege, he must make it appear that he was a consul, unless the other party shows it; as by calling him consul in the original writ.³

Judgment affirmed.

Footnotes

2

See Bank of Utica v. City of Utica, 4 Paige, 399. In Davis v. Packard, 7 Peters, 276, it was decided, that 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 interior court to a higher court by a writ of error, claims the privilege, such an omission is not a waiver of the privilege. It is also held in the same case, that the privilege of being sued only in the courts ot the United States, is not a personal privilege of the consul, which he may waive at his pleasure, but that it is the privilege of the country or government which the consul represents. See also Davis v. Packard, 6 Peters, 41; Ingersoll J., in Hart v. Granger, 1 Connect. R. 169.

3

But see Davis v. Packard, 7 Peters, 276; S. C. 6 Peters, 41. In Latham v. Edgerton, 9 Cowen, 227, it is said, that the want of jurisdiction is a matter that may always be set up against a judgment, when sought to be enforced, or where any benefit is claimed under it. The want of jurisdiction makes it utterly void and unavailable for any purpose. Borden v. Fitch, 15 Johns. R. 141; Mills v. Martin, 19 Johns. R. 33; Smith v. Elder, 3 Johns. R. 105; Coffin v. Tracy, 3 Caines’s R. 129.