[Vattier v. Hinde.]

could not maintain his possession against them. Had he been about to make a purchase, he must have examined the title of Vattier, and must have discovered that he had none. Upon such examination, the deed from Jones could scarcely have escaped his notice.

Findley had paid no money for the lot. The character of the transaction between Vattier and himself is not explained. A new arrangement of all their affairs appears to have taken place, by which this lot was returned. Previous to this new arrangement, he had full notice of the title of the appellees, and with this notice purchased from Garrison at a great undervalue. It is not alleged, nor can we presume that he was driven to this purchase as the only refuge to protect himself from loss. Had such an allegation been made, it would require an examination of the contract and transactions between himself and Vattier; but it is not made.

Upon a full consideration of all the circumstances under which Findley bought from Garrison, we cannot consider him as entitled to that protection which a court of equity affords to a man who purchases a legal title and pays the purchase money, without notice of an equity existing against the property which had been sold to him. At the time of acquiring the legal title, he had full notice of the equity of the appellees; and we do not think he has shown himself to have been placed in a situation which would justify his procuring a conveyance from Garrison. If he was not himself protected against the equity of Doyle's representatives, he could communicate no protection to Vattier, who had himself full notice.

The conveyance to Lytle, and the reconveyance from him, cannot affect the case, because no money was paid.

If, then, the case of the appellees had been correctly stated in their bill, we should have thought them entitled to the relief for which they prayed. But it was not correctly stated. The bill sets forth a title in Belinda, the wife of Thomas S. Hinde, by direct descent from her brother to herself, and insists on this title.

The answer resists the claim because the land had been conveyed by the plaintiffs, before the institution of their suit, VOL. VII.-2 K

[Vattier v. Hinde.]

to Alexander Cummings. The plaintiffs, in their replication, admit the execution of the deed to Cummings, but aver that it was made in trust to reconvey the same rights to the said Thomas, to be held by him in trust for the use and benefit of the said Belinda and her heirs, and to enable the said Thomas the more conveniently to manage, litigate and protect the said rights; and that the said Alexander Cummings did afterwards, in execution of the said trust, make a deed to the said Thomas, which is recorded in the proper county. The deed referred to is exhibited, but expresses no trust for the wife and her heirs. Will the rules of the court of chancery permit this departure in the replication from the statements of the bill?

It is well settled that a decree must conform to the allegations of the party, as well as to his proofs. The answer, supported as it is by the deed to Cummings, would have put the plaintiffs out of court, had they not made a new case in their replication. Ought not this case to have been made in their bill, and can the omission to make it be supplied by averments in the replication?

The act for regulating processes in the courts of the United States, vol. 2, p. 299, enacts, that "the forms and modes of proceedings" in courts of equity and in those of admiralty and maritime jurisdiction, shall be "according to the principles, rules and usages which belong to courts of equity and to courts of admiralty respectively, as contradistinguished from courts of common law;" subject, however, to such alterations, &c.

This act has been generally understood to adopt the principles, rules and usages of the court of chancery of England. By the principles, rules and usages of that court, the plaintiffs, in such a case as this, must have amended their bill. 2 Mad. Ch. 275, 286; Mitf. Pl. 256. They could not have been permitted to make a new case in their replication.

The act permits this court to prescribe rules for the practice of the circuit courts. Rules have been prescribed in pursuance of this power, but they allow a special replication to be filed only with leave of the court. This replication was filed without leave, and is consequently not saved by the rule. We think it obviously proper that the real case should have been stated in the bill, and that the decree ought not to have been

[Vattier v. Hinde.]

pronounced in the actual state of the pleadings. For this fault we are of opinion that the decree ought to be reversed, and the cause remanded, with directions to permit the plaintiffs to amend their bill.

This cause came on to be heard on the transcript of the record 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.

CHARLES A. DAVIS, CONSUL-General of the KING OF SAXONY, 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 ju licial 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 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 this privilege or exemption was merely personal, it can hardly be supposed that it would have been thought 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

1

[Davis v. Packard et al.]

which rested the regulation of foreign intercourse, should have cognizance of suits against the representatives of such foreign governments. The action in the supreme court of New York against the defendant, was on a recognizance of bail, and it was contended that this was not an original proceeding, 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 recognizance 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 recognizance 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.

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 recognizance 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 recognizance 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,