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Webster v. Coopei.

and that, by the true intent and meaning of this section, property cannot, by a mere act of the legislature, be taken from one man and vested in another directly; nor can it, by the retrospective operation of law, be indirectly transferred from one to another, or be subjected to the government of principles in a court of justice, which must necessarily produce that effect.

According to this decision, the act now in question is inoperative, as respects this action, and the demandant's title, on which it is founded. For, unless by a retrospective operation it subjects his title to the government of a new law of disseisin, which, in effect, transfers his property to the tenant, it can have no operation; and whether such an effect can be produced by an act of the Legislature of Maine, under the constitution of that State, was the precise question adjudicated by the Supreme Court in the case referred to, which adjudication we understand to contain an established principle in the fundamental law of that State,

The thirty-fourth section of the Judiciary Act, (1 Statute at Large, 92,) as well as the rule of general jurisprudence, as to the operation of the lex loci upon titles to land, requires us to determine this case according to the law of the State of Maine. In ascertaining what that law is, this court looks to the decisions of the highest court of that State; and where the question turns upon the construction to be given to the constitution of the State, and we find a construction made by the highest State Court very soon after the constitution was formed, acquiesced in by the people of the State for nearly thirty years, and repeatedly confirmed by subsequent judicial decisions of that court, we cannot hesitate to adopt it, and apply it to this case, to which, in our judgment, it is justly applicable. Such has been the uniform course of this court. McKeen •v. Delanay's Lessee, 5 Cr. 22; Polk's Lessee v. Wendall, 9 Cr. 87; Gardner v. Collins, 2 Pet. 58; Shelly v. Guy, 11 Wheat. 351; Green v. Neal, 6 Pet. 291, are some of the cases in which this course has been followed, and its reasons explained. The question has usually been concerning the construction of a statute of a State. But we think there is no sound distinction between the construction of a law enacted by the legislature of a State, and the construction of the organic law, ordained by the people themselves. The exposition of both belongs to the judicial de partment of the government of the State, and its decision is final, and binding upon all other departments of that govern. ment, and upon the people themselves, until they see fit to change their constitution; and this court receives such a settled construction as part of the fundamental law of the State.

In conformity with these principles, we are constrained to

Sheppard et al. v. Graves.

hold the law now in question to be inoperative upon the demandant's title, and consequently, that he is not barred by it from maintaining this action.

The judgment of the Circuit Court must be reversed, and a venire de novo awarded.

Order.

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 Maine, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged, by this court, that the judgment of the said Circuit Court in this cause, be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to award a venire facias de novo.

ABRAM SHEPPARD AND John DUNCAN, PLAINTIFFS IN ERROR, v.

PEYTON S. GRAVES.

It is a bad mode of pleading, to unite plcas in abatement and pleas to the merits.

And if after pleas in abatement, a defence be interposcd, going to the merits of the controversy, the grounds alleged in abatement become thereby immaterial and are

waived. When a plea is filed to the jurisdiction of the court, upon the ground that the plain

tiff is a resident of the same State with the defendant, it is incumbent on the de.

fendant to prove the allegation. It is of no consequenco whether the date of a promissory note be at the beginning or end of it.

This case was brought up, by writ of error, from the District Court of the United States for the District of Texas.

The facts are all set forth in the opinion of the court.

It was argued by Mr. V. E. Howard and Mr. Ballinger, in a printed argument, for the plaintiffs in error, and Mr. Davidge and Mr. O. F. Johnson, for the defendant in error.

The points made by the counsel for the plaintiffs in error, were the following:

1. The court erred in. admitting the notes in evidence, because there was a variance betw 'en the notes offered and those described in the petitions.

The petitions alleged, that the notes'were “ executed and delivered at Matagorda," but did not allege that they bore date at Matagorda, as was found to be the fact on their being produced. VOL. XIV.

43

Sheppard et al. v. Graves.

It was the plaintiff's duty to give a perfect description of his notes, so as to prevent the possibility of the defendants being ever sued upon them again, and if so, that this record should be a bar.

The place at which the notes bore date on their face, was essential to their description. When the objection was made, the plaintiff could have amended, and given an accurate description; but refusing to do this, it was error in the court to admit the notes. · Thus, the words “value received,” are material in a descriptior of the note; and if omitted, the variance will be fatal. 1 Chitty's Pleadings, 339, note 1, ed. 1833; Saxon v. Johnson, 10 Johns. R. 418.

2. The court erred in refusing to instruct the jury, “that, upon the issue as to the citizenship of plaintiff, the burden of proof was on the plaintiff to show such citizenship as entitled him to sue ;” and in giving the instruction, “ that the plaint ff was to be considered a citizen of Louisiana, as alleged in his petition, unless it was pleaded and proved that he was a citizen of Texas."

There was a proper plea to the jurisdiction of the court, presenting the issue as to the citizenship of plaintiff.

It was not necessary that the plea should be verified by affidavit. Hartley's Digest, art. 690, $ 31, Practice, act 1846.

Besides, there was no demurrer or exception taken to the plea for want of an affidavit; and if one had been necessary, it was waived by the plaintiff taking issue on the fact.

The rule which at first prevailed in the courts of the United States, required the plaintiff, on the general issue, to prove citizenship as alleged. Catlett & Keith v. Pacific Insurance Company, Paine's Č. C. R. 594.

It was afterwards decided, however, that a plea in abatement was necessary to raise the question of citizenship. D'Wolf v. Rabaud et al. 1 Peters, 476. See 498.

The courts of the United States are courts of limited jurisdiction ; and although a plea to the merits admits the jurisdiction, yet when jurisdiction is denied by a proper plea, it must be shown by the plaintift. See 1 Cowen & Hill's Notes to Phillips's Ev. p. 487, note 376, and authorities referred to; Maples v. Wightman, 4 Conn. R. 376 ; Wooster v. Parsons, Kirby's R. 27.

The counsel for the defendant in error contended, that there was no variance between the note alleged in the petition of defendant in error, (R. I and 2,) and that offered in evidence.

1. The petition alleged the place where the note bore date, in the usual form, even under the English practice, and with greater

Sheppard et al. v. Graves.

certainty than is required by the law of Texas. But, had there been no such allegation, the omission would have been immaterial. 1 Saund. Pl. and Ev. 260.

2. That there was no error in the refusal of the court below to grant the first prayer of the plaintiffs in error, which plainly tended to mislead the jury, is manifest, and, indeeu, is conceded by the brief filed by their counsel.

3. The court was right in refusing to instruct the jury, “that upon the issue as to the citizenship of plaintiff, the burden of proof was on the plaintiff to show such citizenship as entitles him to sue ;” and in giving the instruction, “that the plaintiff was to be considered a citizen of Louisiana, as alleged in his petition, unless it was pleaded and proved that he was a citizen of Texas."

Exception to the capacity of the plaintiff below to sue in the District Court, could only be taken by plea in abatement. Conard v. The Atlantic Ins. Co. 1 Pet. 386, 450; D'Wolf v. Rabaud et al. Id. 476, 498; Evans v. Gee, 11 Pet. 80,83; Sims v. Hundley, 6 How. 1,5; Smith v. Kernochen, 7 How. 198, 216.

Such' being the case, and as the obligation of proving any fact lies upon the party who substantially asserts the affirmative of the issue, the burden of proof was necessarily upon the defendants below.

The plea is strictly affirmative in its character, alleging, in terms and substance, that the plaintiff was not entitled to sue in the District Court, because he “is, and was at the commencement of this suit, a citizen of the State of Texas." Being in. troductive of new matter, and concluding, as it very properly does, with a verification, the defendants below, who pleaded it, held the affirmative, inseparably connected with which was the onus probandi. 1 Saund. Pl. and Ev. 8, 13, 16, 22; Union Bank of Maryland v. Ridgeley, 1 Harris & Gill, 415-419; Smitu v. Dovers, 2 Doug. 428; Jackson on Pleading in Real Actions, 62, 65; Fowler v. Coster, 1 Moo. & Malk. 241; S. C. 3 C. & P. 463; Colstone v. Hiscolls, 6 C. & P. 666.

Indeed, the definition of a plea in abatement, (in the nature of which is a plea to the jurisdiction, or to the person of the plaintiff,) is, that by it the defendant “shows cause why he should not be impleaded, or if impleaded, not in the manner and form he now is." Bac. Abr., Abatement.

Whenever tho plea is to the jurisdiction, it must state another jurisdiction. Id.

4. The, plea in abatement was a nullity, not having been filed in time. Act of May 13, 1846, 99 23, 24, 26, 27; Laws of Texas, 1846, pp. 369, 370.

Process was regularly served on one of the defendants below,

Sheppard et al. v. Graves. May 31, 1850; on the other, October 12, 1850. The court met on the first Monday of December, 1850. The plea was not filed until January 6, 1851. .

Mr. Justice DANIEL delivered the opinion of the court.

The defendant in error, in conformity with a mode of practice in the State of Texas, instituted an action at law against the plaintiffs in error upon their promissory note. That note was in the words following:

* On the first day of January, 1850, we jointly and severally promise to pay to Peyton S. Graves, or order, at the counting house of R. & D. G. Mills, in Brazoria County, the sum of $1,845.94, for value received, with eight per cent. interest thereon, from the first day of January, till paid.

ABM. SHEPPARD.

John DUNCAN. “Matagorda, Septr 23d, 1844."

The petition sets forth, that Peyton S. Graves, a citizen and inhabitant of Louisiana, represents, that Abram Sheppard and John Duncan, both citizens and residents of the county of Matagorda, in the State of Texas, are jointly and severally indebted to the petitioner in the sum of $1,845.94, with interest thereon, at eight per cento per annum, from the first day of January, 1844, until paid – for that heretofore, to wit, at Matagorda, in the State of Texas, on the 23d day of September, 1844, the said Sheppard, who signs his name Abm. Sheppard, and the said Duncan, executed and delivered to the petitioner, their joint and several promissory note, dated September 23d, 1844, and signed Abm. Sheppard and John Duncan, by which, &c.

Upon the summons issued against each of the defendants, the marshal returns, that he had executed the summons on the 12th of October, 1850, serving each of them with a certified copy of the petition and summons, and with regard to Duncan, the return farther states that the original summons, was also exhibited to him. The plaintiffs in error appeared to the action, and attempted to interpose several defences in the nature of pleas in abatement. They first allege jointly, that the court could not take cognizance of the cause, because the plaintiff below, was not, at the commencement of the suit, a citizen of Louisiana, but of the State of Texas.

The defendant Sheppard, then pleads separately, that the marshal's return upon the summons was not legal, and should be quashed, because it does not state, that the marshal had delivered to the defendant in person, a copy of the citation, and of the petition accompanying it; and that the return was not

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