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Sheppard et al. v. Graves.

made and signed by the deputy purporting to make and sign the same.

The defendant Duncan also pleads separately in abatement, that the citation calls upon him to answer the complaint against him and Abraham Sheppard, whereas the true name of said Sheppard is Abram, and not Abraham; and he also insists upon the insufficiency of the return to the summons, because, as he alleges, that return does not state that the marshal delivered to him in person, a copy of the citation, or of the petition accompanying it.

In addition to these pleas in abatement, the defendants below interposed a defence upon the merits in the nature of the general issue, by which they deny all and singular the matters stated in the petition, and say that they are not indebted to the plaintiff as he has alleged, and in this defence they conclude to the country, whilst in the introduction thereto, they declare that they do not waive their several pleas in abatement, but fully rely upon the same. After this series, of heterogeneous defences, the plaintiff moved the court to strike out the plea to the jurisdiction and all the other pleas in abatement tendered by the defendants, assigning, as the grounds of this motion, that those pleas were not filed within the time required by law..

Upon the trial of the cause, the court seems to have considered the case as standing before it upon all the defences attempted, but ruled out the several pleas in abatement, though whether for the insufficiency of those pleas in point of law, for the want of proof to sustain them, or for their irregularity in the order of pleading, does not certainly appear from this record. The jury upon the issue joined upon the merits, rendered a verdict for the plaintiff for the sum of $2,788.89, for which judgment was given with costs.

The incongruities in practice, which mark the progress of this case in the court below, are much to be regretted, as having a tendency to confound the proceedings in courts of justice; proceedings calculated to define and distinguish the rights of parties litigant, and to conduct the courts to a correct adjudication upon those rights; proceedings indeed founded upon, and as it were sanctified by, an experience of their usefulness, and even of their necessity. Thus it has ever been received as a canon of pleading, that matters which appertain solely to the jurisdiction of a court, or to the disabilities of the suitor, should never be blended with questions which enter essentially into the subject-matter of the controversy.; and that all defences involving inquiries into that subject matter imply, nay admit, the competency of the parties to institute such inquiries, and the authority of the court to adjudicate upon them. Hence it is, that Sheppard et al. v. Gravos.

pleas to the jurisdiction or in abatemerit, are deemed inconsistent with those which appertain to the merits of a cause; they are tried upon different views as to the relations of the parties, and result in different conclusions. A striking illustration of the mischiefs flowing from the departure from the rule just stated, is seen in the practice attempted in the case before us. If it could be imagined that the plea to the jurisdiction and the plea to the merits, could be regularly committed to the jury at the same time, the verdict might involve the following absurdities. Should the finding be for the plaintiff, the judgment would, as to the defendant, be upon one issue, that of respondeas ouster, and upon the other, that he pay the debt, as to the justice of which he was commanded to answer over. Should the finding be for the defendant, the judgment upon one issue must be that the debt was not due, and upon the otier, that the court called upon so to pronounce, had no authority over the case. So that in either aspect there must, under this proceeding, be made and determined one issue, which is incongruous with and immaterjal to the other. A practice, thus fraught with confusion and porplexity, and one endangering the rights of suitors, it is exceedingly desirable should be reformed, and we are aware of no standard of reformation and improvement more safe or more convenient than that which is supplied by the time-tested rules of the common law. And by one of those rules, believed to be without an exception, it is ordained, that objections to the jurisdiction of the court, or to the competency of the parties, are matters pleadable in abatement only, and that if after such matters relied on, a defence be interposed in bar and going to the merits of the controversy, the grounds alleged in abatement become thereby immaterial, and are waived.

With respect to the exception taken to the ruling of the District Court, as to the obligation of the defendant to prove his averment of the plaintiff's residence in the State of Texas, and not of Louisiana, as set forth in the petition, were the decision of this question deemed requisite here, we should say that the true doctrine applicable to the question is this: that although in the courts of the United States it is necessary to set forth the grounds of their cognizance as courts of limited jurisdiction, yet wherever jurisdiction shall be averred in the pleadings, in conformity with the laws creating those courts, it must be taken primâ facie as existing, and that it is incumbent on him who would impeach that jurisdiction for causes dehors the pleading, to allege and prove such causes; that the necessity for the allegation and the burden of sustaining it by proof, both rest upon the party taking the exception. Such, we think, would be the proper rule resulting from the intrinsic character of the exception, Sheppard et al. v. Graves.

and such we consider the doctrine enunciated in the cases of. Conrad v. The Atlantic Insurance Company, in 1 Pet. 386, and D'Wolf v. Rabaud et al. Id. 476.

This doctrine we are unwilling to disturb. The cases just referred to, as well as those of Sims v. Hundley, in 6 Howard, and Smith v. Kernochen, (7 Id. 198,) expressly atârm the commonlaw principle of pleading, herein before mentioned, that the question of the residence or of the right of the parties to sue, as incident to residence, cannot be inquired into under the general issue.

The plea of a misnomer of the defendant Sheppard, by the insertion of two superfluous letters in his christian name, and the still more captious and unmeaning distinction attempted between serving the defendants with a certified copy of the petition and summons in this suit, and a delivery of that petition and summons to the defendants in person, is disposed of by the same rule which displaces, as irrelevant and immaterial, the ex. ception taken to the jurisdiction.

The question of variance between the note and the description of it in the petition, it is not easy to comprehend, unless indeed it is intended by the defendants to insist, that a note should have its date inserted at its beginning only, and cannot be dated at the termination of it; for the note at the bottom bears upon it the date as well as the place of its execution, viz. Matagorda, September 23, 1814, and the description and the petition accord with both these facts. It is true, the petition contains a recital that Matagorda is within the State of Texas, but by no extreme of cavil can this recital be converted into a misdescription of the note. Upon the whole case, we think the judgment of the District Court was correct, and we accordingly order it to be affirmed.

Order.

This cause came on to be heard on the transcript of the record from the District Court of the United States for the District of Texas, and was argued by counse). On consideration whereof, it is now here ordered and adjudged by this court, that the judg. ment of the said District Court in this cause be, and the same is hereby, affirmed, with costs and interest, until the same is paid, at the same rate per annum that similar judgments bear in the courts of the State of Texas.

Sheppard et al. v. Graves.

ABRAM SHEPPARD AND JOHN DUNCAN, PLAINTIFFS IN ERROR,

v. PEYTON S. GRAVES.

In this case, as in the preceding, it is decided, that where the plaintiff averred enough

to show the jurisdiction of the court and the defendant pleaded in abatement that the plaintiff was disabled from bringing the suit, on account of residence, it was

incumbent upon the defendant to sustain the allegation by proof. Until that was done, it was not necessary for the plaintiff to offer any evidence upon

the subject.

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

The parties were the same as those in the preceding case, and the point upon which the decision of the court turned was the same as one of those decided in the preceding case.

It was argued, in conjunction with the other, by the same counsel.

Mr. Justice DANIEL delivered the opinion of the court.

This is a suit between the parties to the case No. 65, and is in all its features essentially the same with the former case with one exception, which will be pointed out..

In this suit, as in No. 65, the defendants below demurred to the petition, pleaded in abatement to the regularity of the service of process, to the disability of the plaintiff on the score of residence, and then interposed a defence in the nature of the general issue, but tendered no proofs in support of their defences, either in abatement or in bar. The plaintiff, to sustain the jurisdiction of the court upon the question of residence, and to meet the pleas in abatement, offered to read the deposition of two witnesses Rugely and Blair, residents of the city of New Orleans, in the State of Louisiana, taken de bene esse before a Commissioner in the city of New Orleans, under the act of Congress of 1789. The reading of these depositions was objected to by the defendants, because the Commissioner did not certify that the witnesses resided at a greater distance than one hundred miles from the place of trial, but stated only that they were residents of the city of New Orleans, within the Eastern District of the State of Louisiana, and beyond the jurisdiction of the District Court of Texas. The court permitted the introduction of oral evidence to prove that the city of New Orleans was at a greater distance than one hundred miles from Galveston, the place of trial; and ruling also that the court itself knew . judicially the mail routes and distances thereof, and that New Orleans, the place of taking said deposi. tions, was more than one hundred miles from Galveston, the place of trial, permitted the depositions to be read in evidence.

Marsh et al. v. Brooks et al.

Whether the District Court erred in allowing an omission in the certificate of the Commissioner to be supplied by oral evidence, or could regularly act upon knowledge assumed to be within its judicial cognizance, we do not consider it necessary to examine, in order to dispose of the case before us. It must be recollected that the defendants below, attempted no proof whatsoever in support of any of their pleas. The plaintiff having averred enough to show the jurisdiction of the court, and nothing having been adduced to impeach it, that jurisdiction remained as stated, and the plaintiff could lose nothing by adducing either imperfect evidence, or no evidence at all, in support of that which clearly existed, and which he, under the circumstances, could not be called on to sustain. Even then had the case in the District Court stood upon an issue regularly formed upon the pleas in abatement, the evidence of the depositions was wholly unnecessary — the ruling of the court upon that evidence was immaterial, and should not impair the strength of the plaintiff's case, which was perfect without it. But the exception to the ruling of the court on this point, must be unavailable upon another view, as given in our consideration of the preceding case. By interposing, the plea of the general is. sue after their several pleas in abatement, the defendants have effectually waived those pleas, and surrendered the positions covered by them. The judgment of the Circuit Court must in this case also be affirmed.

Order. This cause came on to be heard on the transcript of the record from the District Court of the United States for the District of Texas and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court that the judgment of the said District Court in this cause be, and the same is hereby, affirmed, with costs, and interest until the same is paid, at the same rate per annum that similar judg. ments bear in the courts of the State of Texas.

SAMUEL MARSH, William E. LEE, AND EDWARD C. DELAVAN,

PLAINTIFFS IN ERROR, v. EDWARD BROOKS, AND VIRGINIA C. HIS WIFÈ, CHARLES P. BILLON, AND FRANCIS E. HIS WIFE, Walter G. REDDICK, AND DABNEY C. REDDICK.

This court decided, in 8 Howard, 223, that the recitals in a patent for land, referring to

titles of anterior date, were not of themselves sufficient to establish the titles thus recited.

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