Abram Sheppard and John Duncan, Plaintiffs In Error v. Peyton Graves

• Citation: 14 L.Ed. 518,14 How. 505,55 U.S. 505
• Parties: ABRAM SHEPPARD AND JOHN DUNCAN, PLAINTIFFS IN ERROR, v. PEYTON S. GRAVES
• Decision Date: 01 December 1852
• Court: United States Supreme Court

55 U.S. 505

14 How. 505

14 L.Ed. 518

ABRAM SHEPPARD AND JOHN DUNCAN, PLAINTIFFS IN ERROR, v. PEYTON S. GRAVES.

December Term, 1852

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 between 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.

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 descriptor 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 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.'

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 C. 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 plaintiff. 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. 1 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

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, indeed, 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 introductive 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; Smith v. Dovers, 2 Doug. 428; Jackson on Pleading in Real Actions, 62, 65; Fowler v. Coster, 1 Moo. & Malk. 241; S. C. & 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 the 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, §§ 23, 24, 26, 27; Laws of Texas, 1846, pp. 369, 370.

Process was regularly served on one of the defendants below,

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....