The United States v. Smith.

the Government, of the purchase of the brig Julia Moulton by the prisoner, at Boston, from her American owners, previous to her equipment and fitting out at the port of New York for the voyage to the coast of Africa; also, that the ship's papers were taken out at the Custom-House at Boston, and afterwards at New York, by him, or at his instance, and in his own name. The evidence was not entirely clear that the purchase of the vessel was made for himself, or that he had furnished the money that was paid for her. In the ship's papers, which were produced by the Government, the prisoner was described as a citizen of the United States; and he took the usual Custom-House oath that he was such citizen. The evidence was full, that the prisoner, as master of the vessel, sailed from the port of New York to the coast of Africa, took in a cargo of negroes, and thence sailed to the island of Cuba, where the cargo was landed and the ship burned by his orders. Considerable evidence was given on the part of the prisoner tending to show that he was a subject of the kingdom of Hanover, in which he was born, and not a citizen of the United States.

In submitting the case to the jury, the Court stated, that the Government must prove, either that the prisoner, at the time he was engaged in the illegal traffic, was a citizen of the United States, or that the vessel which he commanded was owned, in whole or in part, by a citizen or citizens of the United States, in order to justify them in finding him guilty. And these two questions were accordingly left to the jury for their finding, after their attention was called to the evidence that had been given bearing upon them. The jury found a general verdict of guilty.

The prisoner's counsel now moves for a new trial, upon the ground, among others, that he was taken by surprise in the direction given to the case by the charge of the Court, in submitting to the jury the question as to the national character of the vessel; or, to be more particular, the question whether the interest of the American owners in the vessel had passed to the prisoner by the purchase of her at Boston

The United States v. Smith.

The argument of the counsel is, that the purchase of the vessel by the prisoner had been proved on behalf of the Government; that, assuming, therefore, that it was not to be made a matter of controversy in the progress of the trial, but was to be taken as an admitted fact, he had omitted to examine witnesses and to produce evidence, which, if his attention had been turned to the point, or he had deemed it material, would have placed the fact beyond all reasonable doubt; and that, having taken it for granted, from the course of the trial, that the purchase and transfer of the vessel from the American owners passed from them and vested in the prisoner a complete title to the vessel, the counsel supposed that the only question in controversy, left in this part of the case, was the question of citizenship.

We are satisfied, on a review of the case, that these considerations suggested by the counsel for the prisoner, are entitled to weight, and that the course of the trial may very well have misled him in respect to the point mentioned, in conducting the defence. The Government, having begun the trial by giving evidence tending to prove the purchase of the vessel by the prisoner from her American owners, and having thus made that fact, whether material or not, a part of its case, so far as the prosecution was concerned, it was natural for the counsel for the prisoner to infer, that unless he himself chose to controvert it, it would be regarded as admitted, or, at least, not be a matter of controversy in the future progress of the trial. The somewhat imperfect state of the evidence in respect to this purchase, as given on the trial, led to the impression, at the time, that whatever might be our opinion as to the fact, the question was one that belonged to the jury, and it.was submitted accordingly. We are satisfied, from the view already presented, that in this respect we were mistaken; and that, instead of submitting the fact to the jury, as the Government had made it a part of its case, and as the fact was not controverted by the prisoner, the Court should have regarded it as undisputed, and have confined the question at issue to the citizenship of the pris

St. Luke's Hospital v. Barclay.

oner. Not only was the view taken by the Court calculated to mislead the counsel for the defence, but, we think, from the course of the trial, and from the evidence given on the part of the Government, that there was error in submitting the question of the national character of the vessel to the jury at all, as a question open for their consideration.

The finding of guilty was general, and, as the national character of the vessel was submitted to the jury, their verdict may have been influenced by the consideration of that question. There must, therefore, be a new trial.

ST. LUKE'S HOSPITAL

v8.

ANTHONY BARCLAY AND ROBERT BUNCH. IN EQUITY.

Where a bill in Equity is filed in this Court, to stay proceedings at law pending in this Court, the Equity suit is auxiliary to the action at law, and may be maintained without regard to the citizenship or alienage of the parties to the record, and although the Court may not have jurisdiction over the parties for other relief.

A cestui que trust may maintain a bill for an injunction against his trustee, to prevent his collecting, appropriating, or disposing of the trust property.

This Court has jurisdiction of an original civil suit in which the plaintiff is a citizen, and the defendant is an alien, even though the defendant is a resident foreign Consul duly admitted as such by the President.

The consular character of an alien only exempts him from the jurisdiction of State Courts in civil suits, and he may be sued in this Court as well as in a District Court.

(Before BETTS, J., Southern District of New York, March 27th, 1855).

THIS was a bill in Equity, filed by St. Luke's Hospital, a New York corporation. The defendants were aliens. The bill prayed for an injunction to restrain them from prosecuting a suit instituted by them in this Court, against the New York Life Insurance and Trust Company, for the recovery of

St. Luke's Hospital v. Barclay.

$10,000, held on deposit by that Company in the names of the defendants.

The bill set forth, that in October, 1845, the Rector, Churchwardens, and Vestrymen of the Anglo-American Free Church of St. George the Martyr, became incorporated under the laws of New York, as a religious corporation; that in May, 1848, the Corporation of the City of New York granted to the said religious corporation, a lot of land, situate on the 5th Avenue, between 54th and 55th streets, upon condition that said Church should erect thereon a hospital and chapel for the relief of British emigrants, on or before the 1st of May, 1853, in default whereof the premises were to revert to the City of New York; that the Church did not erect such hospital and chapel within the time limited, and possessed no means for so doing, and had no prospect of obtaining them; that in April, 1850, the plaintiffs became incorporated, for the purpose of establishing, founding, carrying on and managing a hospital in New York; that it is part of the design of the plaintiffs that their hospital be connected with the Protestant Episcopal Church of the United States, as one of the charitable institutions of that Church; that its benefits are mainly intended for the poor of that Church; that a chapel is also to be attached to the hospital, in which services are to be conducted according to the liturgy and discipline of that Church, the doctrine and discipline of which are substantially the same with those of the Church of England; that the Rector, Churchwardens, and Vestrymen of St. George the Martyr, being unable to fulfil the conditions of such grant to them, agreed that the land so granted to them should be transferred to the plaintiffs, and be used for the erection of buildings for their corporate purposes, and of a hospital with a church or chapel of the Protestant Episcopal Church attached thereto, and that, in consideration of such transfer, a wing ward, or department of said hospital should be appropriated to the special benefit and relief of British emigrants, as a substitute for the hospital originally contemplated by said Church of St. George the Martyr; that, after such arrangement was

St. Luke's Hospital v. Barclay.

made, but before it was fully consummated, Bunch, one of the defendants, proceeded to England, to collect funds from members of the Church of England, for the endowment and support of said proposed hospital and chapel, to be included in and form part of the plaintiffs' buildings, and, for that purpose, circulated a paper seeking donations, and setting forth the object to be as above stated, and that a fusion of St. Luke's Hospital and the Church of St. George the Martyr had been made to that end; that about $11,000 was received by said Bunch, in contributions to the object, under such appeal, and was given in expectation that most of such contributions would be applied to the aid of the plaintiffs' undertaking; that in October, 1852, the fusion was completed, and the officers of the Church of St. George the Martyr conveyed to the plaintiffs the premises granted to them by the City of New York, and the plaintiffs, on the same day, executed to the Church of St. George the Martyr, an agreement under seal, in fulfilment of the mutual arrangement entered into between the parties; that, thereupon, the plaintiffs entered into possession of the land, and had commenced the erection thereon of suitable buildings for a hospital and a church or chapel thereto annexed, and were prosecuting the same to completion with all diligence, and were possessed of means sufficient therefor; that subsequently the defendant Bunch paid to the plaintiffs $823 50, for the benefit of St. George's ward, alleging that to be the whole amount collected for that object; that, about the same time, he deposited in the New York Life Insurance and Trust Company the balance of the money so by him collected, being about $10,000, in his own name and that of the defendant Barclay, and that they had since claimed the exclusive right to hold and disburse said sum; that the principal part of said sum was intended, by the donors, for the British Emigrant Hospital in New York, now known as the ward of St. George the Martyr, in St. Luke's Hospital; and that said sum ought to be applied to the endowment and use of said Hospital. The bill prayed that the defendants be decreed to apply and dispose of said fund according to the