JAMES W. BREEDLOVE AND WILLIAM L. ROBESON, PLAINTIFFS IN ERROR V. THEODORE NICOLET AND J. J. SIGG.

Jurisdiction. The plaintiffs, aliens, were residents of the state of Louisiana at the time of the execution of the note sued on in the district court of the United States for the eastern district of Louisiana, and continued to reside in New Orleans since, having a commercial house there; they are, however, absent six months in the year; but when absent have their agent to attend to their business. The defendants in the suit were residents of the city of New Orleans, and citizens of the state of Louisiana, when the note was given. The residence of aliens within the state constitutes no objection to the jurisdiction of the federal court. The commercial partnership, the drawers of the note upon which the suit was instituted, was composed of three persons, one of whom was a resident citizen of Alabama, and out of the jurisdiction of the court when the suit was brought, and the remaining two, the defendants, were resident citizens of Louisiana. Held: that although the suit being against two of the three obligors might not be sustained at common law; yet as the courts of Louisiana do not proceed according to the rules of the common law, their code being founded on the civil law, this suit is properly brought.

The note being a commercial contract, is what the law of Louisiana denomi. nates a contract in solido; by which each party is bound severally as well as jointly, and may be sued severally as well as jointly. The plaintiff Sigg was denominated in the petition and writ " J. J. Sigg." The omission of his christian name at full length was alleged as error. By the court. He may have had no christian name. He may have assumed the letters "J. J." as distinguishing him from other persons of the name of Sigg. Objections to the name of the plaintiff cannot be taken advantage of after judgment. If J. J. Sigg was not the person to whom the promise was made; was not the partner of Theodore Nicolet & Co.; advantage should have been taken of it sooner. It is too late to allege it as error in this court.

The petitioners aver that they are aliens. This averment is not contradicted on the record, and the court cannot presume that they are citizens. If originally aliens, they did not cease to be so, or lose their right to sue in the federal court, by a residence in Louisiana. Neither the constitution nor the acts of congress require that aliens should reside abroad to entitle them to sue in the courts of the United States. The suit not having been brought against Bedford, one of the partnership, it was not necessary to aver that he was subject to the jurisdiction of the courts of the United States.

After issue joined in the district court, the defendants filed a plea that the firm of Theodore Nicolet and Company, the plaintiffs, consisted of other

[Breedlove and Robeson v. Nicolet and Sigg.]

persons in addition to those named in the writ and petition, and that those other persons were citizens of Louisiana. The court, after receiving the plea, directed that it be taken from the files of the court. Held, that this was a proceeding in the discretion of the court; and was not assignable as error in this court.

The plea was offered after issue was joined on a plea in bar, and the argu

ment of the cause had commenced. The court might admit it; and the court might also reject it. It was in the discretion of the court to allow or refuse this additional plea. As it did not go into the merits of the case, the court would undoubtedly have acted right in rejecting it. All the proceedings in a case are supposed to be within the control of the court while they are in paper, and before a jury is sworn, or judgment given. Orders made may be revised, and such as in the judgment of the court may have been irregular or improperly made, may be set aside. Construction of the insolvent laws of Louisiana.

IN error from the district court of the United States for the eastern district of Louisiana.

This action was instituted in the district court by Theodore Nicolet and J. J. Sigg, both averred to be aliens, and citizens and subjects of the republic of Switzerland, but at present residing and trading in the city of New Orleans, under the firm and style of Theodore Nicolet & Co.

The petition of the plaintiffs sets out a joint and several demand against J. R. Bedford, James W. Breedlove, and William L. Robeson, formerly partners in trade, and doing business in the said city under the firm and style of Bedford, Breedlove & Robeson. The cause of action was a promissory note, subscribed by Bedford, Breedlove & Robeson, for two thousand nine hundred and sixty-four dollars and ten cents, dated at New Orleans 22d November 1826, payable sixty days after date to the order of the petitioners. The petition then avers that said Bedford, Breedlove & Robeson, have become indebted to the petitioners in the amount of said note, with interest and costs.

It further avers that Breedlove and Robeson are citizens of the state of Louisiana, and reside in New Orleans, and that each of them liable, as aforesaid; and prays that Breedlove and Robeson may be cited, and that judgment be rendered against them, jointly and severally, for the amount due. Attached to the petition is an affidavit, setting forth that Breedlove and Robeson are jointly and severally indebted, &c.

Two separate writs of capias ad respondendum were issued,

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[Breedlove and Robeson v. Nicolet and Sigg.]

the one against Robeson, the other against Breedlove, upon which they were severally arrested and held to bail, under a special order of the judge.

In June 1829, the defendants filed their joint and separate answer to the petition, in which, reserving all legal exceptions, they aver that the said commercial house of Bedford, Breedlove & Robeson, of which they were partners, having become embarrassed by misfortunes, after the execution of the note sued on, to wit, March 16, 1827, made out a full and complete schedule, exhibiting the debts due by them, and the property and debts belonging and due to them jointly and severally, which said property was duly accepted by the judge of the parish court, for the benefit of the creditors placed upon said schedule.

Among their creditors were the plaintiffs, Theodore Nicolet & Co. then residents of New Orleans, in the state of Louisiana, and who were also residents of the same place at the time of the execution of the note now sued on.

After the said acceptance so made by said parish judge, a meeting of the creditors of Bedford, Breedlove and Robeson, was duly called. At the appointed time and place the creditors who assembled approved of the acceptance of the property made by the judge as aforesaid. Upon these proceedings judgment of discharge was finally rendered in favour of the defend

ants.

Afterwards the original note was filed, to wit, January 4, 1830, and, on the following day, viz. January 5, 1830, the defendants filed a plea to the jurisdiction.

In this plea, after setting out the note, they allege that the district court cannot properly exercise jurisdiction over the case, because they allege that said note was drawn by Bedford, Breedlove and Robeson, payable to the order of T. Nicolet & Co., who indorsed and assigned the same to one Frederick Beckman, who indorsed and assigned the same to J. J. Sigg, who assigned the same to Theodore Nicolet & Co. the present plaintiffs. The defendants then aver that said firm of T. Nicolet & Co. is composed of various other persons than the said Theodore Nicolet and J. J. Sigg; that, among the part

[Breedlove and Robeson v. Nicolet and Sigg.]

ners in said firm, one Germain Mussen, and one M. P. Durell, and one Charles Lessept, all and each of whom are citizens of the United States, and state of Louisiana.

Further, they aver that Frederick Beckman, a remote indorser on said note, was, prior to the 5th July, 1828, and at the time of his transfer to J. J. Sigg, an alien, and a subject of the Hanseatic Towns: that, on the 5th July, 1828, he became a citizen of the United States, and state of Louisiana, and was so at the time of the institution of this suit, &c.

This plea was filed on the 5th January, after the hearing of the cause had been commenced, and the objection of the petitioners' counsel against then receiving it, was overruled.

On the 20th May 1830, on motion to reconsider and annul the order of January which permitted the defendants to file the plea to the jurisdiction, it was objected that it came too late, the cause having been put upon the jury calendar, and regularly called on that calendar for trial.

The court rescinded the order. 1st, Because it was not filed in time; the defendants having pleaded to the merits before oyer was given of the note; and, upon this plea, the cause was at issue when the plea to the jurisdiction was filed. 2d, Oyer of the note was not necessary to enable a party to plead in abatement the citizenship of the plaintiffs; that both branches of the plea to the jurisdiction deny the capacity of the plaintiffs to sue, and, therefore, ought to have been pleaded in abatement, and before issue joined on the merits; and that no material step was taken in the cause, between the reception of said plea and its subsequent rejection on reconsideration.

On June 7th, 1830, the cause came on for trial, when the following facts were admitted on the record:

That the persons, composing the firm of T. Nicolet & Co. were residents of the state at the time of the execution of the note sued, and have continued so up to the present time;

That they are absent about six months in the year; but, when so absent, have their agents to attend to their business, and their commercial house has existed in New Orleans ever since the execution of said note;

That Breedlove and Robeson were residents of the city of New Orleans, and citizens of the state of Louisiana.

[Breedlove and Robeson v. Nicolet and Sigg.]

The proceedings under the insolvent law of Louisiana were admitted in evidence.

The plaintiffs filed the protest of the note, which appears to have been made November 22, 1827, at the instance of Frederick Beckman.

On the 10th of June 1880, judgment was entered for the following terms:

The court having maturely considered this case,, now order and adjudge, that judgment be entered up in favour of the plaintiffs against the defendants, jointly and severally, for the sum of twenty-nine hundred and sixty-four dollars and ten cents, with interest at the rate of five per cent per annum, from the twenty-fourth day of January 1827, until paid, and costs of suit.

To reverse this judgment the defendants prosecuted this writ

of error.

The case was argued by Mr Coxe, for the plaintiffs in error, and by Mr Livingston, in a printed argument, for the defend

ants.

Mr Coxe contended that the judgment of the district court was erroneous, and ought to be reversed.

1. Because the action was irregularly instituted, no process having been sued out against Bedford, one of the partners, and the suit being a joint as well as a several one.

2. Because neither in the petition, writ, or in any part of the proceedings, is the christian name of Sigg set forth; which is essential.

3. Because there is no evidence that the petitioners were aliens, and, as such, authorized to sue in the courts of the United States; but the only facts in the case which can be judicially recognized, show them to have been at the date of the note, and still to continue, residents of New Orleans, and of the state of Louisiana.

4. Because, even if originally aliens, and never naturalized, such residence deprives a party of his right to sue in the courts of the union, as an alien.

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