BILL OF EXCEPTIONS.

The whole charge of the circuit court was brought up with the record. By the court. This is a practice which this court have uniformly discountenanced, and which the court trusts a rule made at last term will effectually suppress. Magniac v. Thompson. 348.

CASES CITED AND AFFIRMED.

1. The cases of Russell v. Clarke's Executors, 7 Cranch's Rep. 69, 2 Peters's Condensed Reports, 417; and Drummond v. Prestman, 12 Wheat. Rep. 515, cited. Douglass v. Reynolds. 113.

2. In the case of Polk's Lessee v. Wendell, 5 Wheat. 308, it is said by this court, that, on general principles, it is incontestable that a grantee can convey no more than he possesses. Hence, those who come in under a void grant, can acquire nothing. Sampeyreac v. The United States. 222.

3. The cases of Nollan et al. v. Torrance, 9 Wheat. Rep. 537; Connolly et al. v. Taylor, 2 Peters, 556; and Cameron v. M’Roberts, 3 Wheat. Rep. 591, cited and affirmed. Vattier v. Hinde. 252. 4. The case of Carver v. Jackson, 4 Peters, 80, 81, cited. Magnia v. Thompson. 348.

5. The court are entirely satisfied with their former decision in th case of the Union Bank of Georgetown v. Magruder, 3 Peters' Rep. 87. The Union Bank of Georgetown v. Magruder. 287.

CHANCERY AND CHANCERY PRACTICE.

1. Practice.

2. Evidence.

3. A bill was filed in the circuit court of Ohio, claiming a conveyance of certain real estate in Cincinnati from the defendants, and after a decree in favour of the complainants, and an appeal to the supreme court, the decree of the circuit court was reversed, because a certain Abraham Garrison, through whom one of the defendants claimed to have derived title, had not been made a party to the proceedings, and who was, at the time of the institution of the same, a citizen of the state of Illinois, although the fact of such citizenship did not then appear on the record. Afterwards, a supplemental bill was filed in the circuit court, and Abraham Garrison appeared and answered, and disclaimed all interest in the case: whereupon the circuit court, with the consent of the complainants, dismissed the bill as to him. By the court. If the defendants have distinct interests, so that substantial justice can be done by decreeing for or against one or more of them, over whom the court has jurisdiction, without affecting the interests of others, its jurisdiction may be exercised as to them. If, when the cause came on for hearing, Abraham Garrison had still been a defendant, a decree might then have been pronounced for or against the other defendants, and the bill have been dismissed as to him, if such decree could have been pronounced as to them without af

CHANCERY AND CHANCERY PRACTICE.

fecting his interests. No principle of law is perceived which op-
poses this course. The incapacity of the court to exercise juris-
diction over Abraham Garrison, could not affect their ju- ction
over other defendants, whose interests were not connected with
his, and from whom he was separated, by dismissing the bill as to
him. Vattier v. Hinde. 252.

4. The rules of law respecting a purchaser without notice, are formed
for the protection of him who purchases a legal estate, and pays
the purchase money without a knowledge of the outstanding equity.
They do not protect a person who acquires no semblance of title.
They apply fully, only to the purchaser of the legal estate. Ever
the purchaser of an equity is bound to take notice of any prio
equity. Ibid.

5. The bill set forth a title in B. H., the wife of T. H., by direct de-
scent from her brother to herself, and insisted on this title to cer-
tain real estate. The answer of the defendants resisted the claim,
because the land had been conveyed by the complainants before
the institution of the suit to A. C. The complainant in his repli-
cation admitted the execution of the deed to A. C., but averred
that it was made in trust to reconvey the lot to T. H., to be held
by him for the use and benefit of B. H., his wife, and her heirs,
and to enable T. H. to manage and litigate the said rights; and
that A. H., in execution of the trust, made a deed to T. H. The
deed was recorded, and was exhibited, but it did not state the
trust. The rules of the court of chancerv will not permit this
departure in the replication from the statements of the bill. Ibid.
6. Where the new parties to a proceeding in chancery are the legal
representatives of an original party, and the proceedings have
been revived in their names, by the order of the court on a bill of
revivor; the settled practice is to use all the testimony which
might have been used if no abatement had occurred. The repre-
sentatives take the place of those which they represent, and the
suit proceeds in a new form, unaffected by the change of name.
Ibid.

7. To deprive a party of the fruits of a judgment at law, it must be
against conscience that he should enjoy them. The party com-
plaining, must show that he has more equity than the party in
whose favour the law has decided. Brashear v. West.

608.

8. A complex and intricate account is an unfit subject for examination
in a court, and ought always to be referred to a commissioner, to
be examined by him and reported, in order to a final decree. To
such report the parties may take any exceptions, and thus bring
any question they may think proper before the court. Dubourg
de St Colombe's Heirs v. The United States. 625.

CONSTITUTIONAL LAW.

1. The provision in the fifth amendment to the constitution of the
United States, declaring that private property shall not be taken
VOL. VII.-4 M

CONSTITUTIONAL LAW.

for public use without just compensation, is intended solely as a limitation on the exercise of power by the government of the United States; and is not applicable to the legislation of the states. Barron v. The Mayor and City Council of Baltimore. 243. 2. The constitution was ordained and established by the people of the United States for themselves; for their own government; and not for the government of individual states. Each state established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation, and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally and necessarily applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments framed by different persons and for different purposes. Ibid.

3. 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. Davis v. Packard. 276.

4. 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 judicial 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. Ibid. 5. 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 minis

CONSTITUTIONAL LAW

ters are considered by the law of nations; and our constitution and
law seem to put consuls on the same footing in this respect. Ibid.
6. 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 which rested the regulation of foreign
intercourse, should have cognizance of suits against the represen-
tatives of such foreign governments. Ibid.

7. The action in the supreme court of New York against the defend-
ant, was on a recognizance of bail, and it was contended that this
was not an original proceeding, but the continuance of a suit right-
fully 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. Ibid.

8. 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 be-
low. Ibid.

9. 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.
Ibid.

10. The titles to lands under the acts of the legislature of the state of
Pennsylvania, providing for the sale of the landed estate of John
Nicholson, in satisfaction of the liens the state held on those lands,
and the proceedings under the same are valid. Lessee of Livings-
ton v. Moore. 469.

11. These acts, and the proceedings under them, do not contravene
the provisions of the constitution of the United States, in any man-
ner whatsoever. Ibid.

12. The words used in the constitution of Pennsylvania in declaring the
extent of the powers of its legislature, are sufficiently comprehen-
sive to embrace the powers exercised over the estate of John
Nicholson. Ibid.

13. Juan Madrazzo, a subject of the king of Spain, filed a libel praying
admiralty process against the state of Georgia, alleging that the
state was in possession of a certain sum of money, the proceeds of
the sale of certain slaves which had been seized as illegally brought
into the state of Georgia; and which seizure had been subsequently,
under admiralty proceedings, adjudged to have been illegal, and
the right of Madrazzo to the slaves, and the money arising from
the sale thereof, established by the decision of the circuit court of

CONSTITUTIONAL LAW.

the United States for the district of Georgia. The counsel for the petitioner claimed that the supreme court had jurisdiction of the case, alleging that the eleventh amendment of the constitution of the United States, which declares that the judicial power of the United States shall not extend to any suits in law or equity, did not take away the jurisdiction of the courts of the United States, in suits in the admiralty against a state. Held, that this is not a case where property is in custody of a court of admiralty; or brought within its jurisdiction, and in the possession of any private person. It is a mere personal suit against a state to recover proceeds in its possession, and such a suit cannot be commenced in this court against a state. Ex parte Juan Madrazzo. 627. CONSTRUCTION OF STATUTES OF THE UNITED STATES.

1. Forgery.

2. Robbing the mail.

3. Construction of the act of congress passed the 5th of May 1830, entitled "an act for the further extending the powers of the judges of the superior court of the territory of Arkansas, under the act of the 26th May 1824, and for other purposes." Sampeyreac v. The United States. 222.

4. Under the pro isions of an act of congress passed on the 26th May 1824, proce‹ dings were instituted in the superior court of the territory of Arkansas, by which a confirmation was claimed of a grant of land alleged to have been made to the petitioner, Sampeyreac, by the Spanish government, prior to the cession of Louisiana to the United States by the treaty of April 3d, 1803. This claim was opposed by the district attorney of the United States; and the court, after hearing evidence, decreed that the petitioner recover the land from the United States. Afterwards, the district attorney of the United States, proceeding on the authority of the act of 8th May 1830, filed a bill of review founded on the allegation that the original decree was obtained by fraud and surprise, that the documents produced in support of the claim of Sampeyreac were forged, and that the witnesses who had been examined to sustain the same were perjured. At a subsequent term Stewart was allowed to become a defendant to the bill of review, and filed an answer, in which the fraud and forgery are denied, and in which he asserts that if the same were committed, he is ignorant thereof, and asserts that he is a bona fide purchaser of the land for a valuable consideration, from one John J. Bowie, who conveyed to him the claim of Sampeyreac by deed, dated about the 22d October 1828. On a final hearing, the court being satisfied of the forgery, perjury and fraud, reversed the original decree. Held, that these proceedings were legal, and were authorized by the act of the 5th of May 1830. Ibid.

5. Almost every law providing a new remedy, affects and operates