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Peters, 391, and the case referred to in the 2. It must be drawn in question upon the opinion of the court:
ground that it is repugnant to the Constitution, Mr. Crittenden, for the plaintiff in error, op- treaties, or laws of the United States. posed the motion. He referred to the provision 3. The decision of the State court must be in the 25th section of the Judiciary Act, which in favor of their validity. authorizes writs of error in cases where is In the case before us, the validity of the drawn in question the validity of a statute, and statute of the State of Kentucky which char. the decision is against it.
tered the Commonwealth Bank, and the auThe State of Kentucky, in the exercise of its thority exercised under that charter, were reserved rights, had established the Bank of the drawn in question in the State court; and they Commonwealth. She claims under this author were questioned upon the ground of their beity, and relies on the clause of the Constitution ing repugnant to the Constitution of the United which declares all powers not granted by the States. But the decision was against their Constitution to be reserved. She says that by validity, and not in favor of it; and consequentthe decision of the Supreme Court of Missouri ly the third contingency which is necessary to she is interrupted in the exercise of her reserved give jurisdiction to this court has not arisen. rights. She claims to have these rights guar- In the case of Briscoe et al. v. The Common. anteed to her, and their exercise protected by wealth Bank, 11 Peters, 257, the decision of this court:
the State court was in favor of the validity of the statute. The party therefore who denied
its validity, and alleged that it was repugnant Mr. Chief Justice Taney delivered the to the Constitution of the United States, was opinion of the court:
entitled to have that question re-examined in A motion has been made to dismiss the writ the Supreme Court. But it is otherwise, by of error in this case, upon the ground that the plain words of the law, when the decision this court have not jurisdiction.
of the State court is against the validity of It appears from the record that an action the State statute, or the authority exercised was brought in the Circuit Court of the State under it. of Missouri for the County of Calloway, by the The policy of this distinction is obvious plaintiff in error, in order to recover the enough. The power given to the Supreme amount due on a promissory note given by the Court by this act of Congress was intended to defendant and others to the bank. The de protect the general government in the free and fendants, among other things, pleaded “that uninterrupted exercise of the powers conferred the note sued on was made by the defendants on it by the Constitution, and to revent any to the plaintiffs, in consideration of the paper serious impediment from being thrown in its of the said Bank of the Commonwealth of way while acting within the sphere of its legiti. Kentucky, and that the said paper was bills of mate authority. The right was therefore given credit, within the meaning of the Constitution to this court to re-examine the judgment of of the United States, issued on the credit of the the State courts, where the relative powers State.” The Circuit Court overruled this plea, of the general and State government had been and gave judgment for the plaintiffs. The de. in controversy, and the decision had been in fendants removed the case to the Supreme favor of the latter. It may have been appre. Court of the State, where the question above hended that the judicial tribunals of the States mentioned was again raised; and it was then would incline to the support of State authority decided that the notes of the bank were bills of against that of the general government; and credit, within the meaning of the Constitution might, moreover, in different States give differ. of the United States, and that the contract up- ent judgments upon the relative powers of the on which the note in question was given was two governments, so as to produce irregularity therefore void; and upon that ground the judg: and disorder in the administration of the genment of the Circuit Court was reversed, and eral government. But when, as in the case be. judgment entered for the defendants. The fore us, the State authority or State statute is point is, can this judgment of the State court decided to be unconstitutional and void in the be re-examined here !
State tribunal, it cannot under that decision The question depends altogether upon the come in collision with the authority of the construction of the second clause of the 25th general government; and the right to re-exsection of the Act of 1789, which provides that amine it here is not necessary to protect this the final judgment or decree of the highest government in the exercise of its rightful pow. court of law or equity in a State, in wbich a In such a case, therefore, the writ of decision could be had, may be re-examined in error is not given; and the one now before us this court upon a writ of error, “where is must be dismissed for want of jurisdiction. drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the *This cause came on to be heard on the [*59 58"] Constitution, treaties, or laws of the transcript of the record from the Supreme United States, and the decision is in favor of Court of the State of Missouri, holden at the such their validity.”
town of Fayette, in the County of Howard, in Under this clause of the act of Congress, and for the First Judicial District of said three things must concur to give this court State, and was argued by counsel; on consider. jurisdiction.
ation whereof, it is now here ordered and ad1. The validity of a statute of a State, or of judged by this court that this writ of error to the an authority exercised under a State, must be said Supreme Court be, and the same is hereby drawn in question
dismissed for the want of jurisdiction.
60*) *THE COMMERCIAL and RAILROAD| the corporators, stockholders, or company, aro BANK OF VICKSBURG, Plaintiff in Error, composed of citizens of other and different
States, to wit: That William M. Lambeth, and BLOCOMB, RICHARDS & COMPANY, Defend. William E. Thompson, citizens of the State ants in Error.
of Louisiana, *are now, and were at the [*61
time this suit was instituted, stockholders and Pleading practice-jurisdiction.
corporators therein; and this,” etc.
The following affidavit was subjoined to the An action was brought in the Circuit Court of plea: Mississippi, against the Commercial and Railroad “James Roach, acting cashier for the Comwere cltizens of the State of Louisiana. The de defendants in the above case, makes oath, and Bank of Vicksburg, Mississippi, by parties who mercial and Railroad Bank of Vicksburg, the fendants pleaded in abatement, by attorney, that they are an aggregate corporation, and that two of says the above plea is true in substance and the stockholders resided in the State of Mississippi. fact.
"Signed, J. Roach. The affidavit to the plea was sworn to by the cashler of the bank, before the "deputy clerk."
“Sworn to, and subscribed before me, this not entitled as of any term of the court. The 4th day of November, 1839. plalntifs demurred to the plea. Held, that the ap
"Signed, George W. Miller, pearance of the defendants in the Circuit Court, by attorney, was proper; and that if any exceptions
“Deputy Clerk.” existed to this form of the plea, they should have To this plea the plaintiffs demurred, and asbeen urged to the receiver of It when it was of: signed the following special causes, to wit: the Circuit Court of Mississippi bad no jurlsdic-entitled of any term of this court.
1. The said plea in abatement is not properly tion of the case.
The artificial being, a corporation aggregate, Is not, as such, a citizen of the United States; yet the sufficient, nor is the same properly attested.
2. The affidavit in support of said plea is not courts of the United States will look beyond the mere corporate character, to the individuals of 3. The matters set forth in said plea are not whom it is composed, and if they were citizens of sufficient to abate the plaintiffs' suit. a diferent State from the party sued, they are com The demurrer was sustained and judgment petent to sue in the courts of the United States ; but all the corporators must be cltizens of a differ rendered for the plaintiffs. ent State from the party sued. The same principle The defendants prosecuted this writ of er. applies to the individuals composing a corporation aggregate, when standing in the attitude of defend. ants, which does when they are in that of plain Mr. Sergeant, for the plaintiffs in error, as. tiffs. The Act of Congress passed February 28th, 1839: Court, the following points :
signed as error in the judgment of the Circuit entitled "An Act in amendment of the acts respect: ing the judicial system of the United States,
1. The alleged defect in the plea in abate. not contemplate a change in the jurisdiction of the ment of the defendants below, and the want of courts of the United States, as it regards the character of the parties as prescribed by the Judiciary
à proper atsidavit, and attestation of the plea, Act of 1789, as that act has been expounded by the
are not causes of demurrer. Supreme Court of the United States; which is, 2. If they are causes of demurrer, the plea that each of the plaintiffs must be capable of suing, and each of the defendants capable of being ment of the Circuit Court should have been to
was legal and sufficient; and if not so, the judg. sued.
3. The causes assigned as sufficient to abate States for the Southern District of Mississippi.
general demurrer, did not require to be special. Cora A. Slocomb, Robert Richards, and ly assigned, is not founded in law. On the Romanzo W. Montgomery, styling themselves contrary, the facts stated in the plea and adcitizens of Louisiana, trading under the firm of mitted by the demurrer are sufficient in law to Slocomb, Richards & Company, sued the Presi- take away the jurisdiction of the court, and
entitle the defendants to judgment. dent, Directors and Company of the Commercial and Railroad Bank of Vicksburg, styling formal, still the facts stated in them, however
4. That if the plea and affidavit were inthem citizens of the State of Mississippi, living and whenever appearing, were fatal to the juand resident in the Southern District thereof, risdiction; which cannot be maintained by con. being a banking company incorporated by the Legislature of the State of Mississippi, located sent, or by waiver of the parties, or either of in the southern district aforesaid.
them. The suit
Mr. Sergeant contended that the principal was upon a certificate of deposit for three thousand five hundred and forty-one dollars and question in this case, whether all the members thirty-four cents.
of a corporation aggregate, should be citizens To the declaration of the plaintiffs, averring of the State in which the suit was brought, had es above stated, the defendants put in the fol- been frequently, decided by the court. lowing plea:
The jurisdiction of the circuit courts of the "The said defendants, by attorney, come and United States, the circuit courts having limited say that this court ought not to have or take jurisdiction, extended only to controversies be. further cognizance of the action aforesaid, between citizens of other States, and those of the
State in which the action was brought, [*62 cause they say that they are a corporation ag. gregate, and were at the time this suit was
so far as the law had an application to the case instituted, and yet so continue to be, and that before the court. It has also been decided that
although a corporation cannot be considered
a citizen of the State erecting it, yet the court NOTO.- As to jurisdiction of federal courts depending on the residence of the parties, including will look behind its charter, and if it finds the residence of corporations, see notes to 1 L. ed. V. corporators citizens of one State, will recog. ed. U. 8. 287; 27 2 ed.'ů. s. 87; 36 L. ed. u. nize the right of those corporators to sue in the 8. 579.
circuit courts. But it will apply to them the
I nostre entor the Southern Capistricte be Ministers !
same principles and rules which are applicable | received after an appearance, the period when to all parties coming into the courts of the the plea was filed cannot otherwise be known. United States. All the corporators must be cit. Courts are not disposed to sustain pleas in izens of the State in which the suit is instituted abatement. A court will not consider that the to give the court jurisdiction. Cited, Straw- defendants sued were out of its jurisdiction, bridge v. Curtis, 3 Cranch, 267; The Bank of unless this shall be shown by proper pleading; the United States v. Deveaux, 5 Cranch, 61. and by this pleading in proper time. Cited,
Nor did the appearance of the plaintiffs in Story's Pleading, pl. 3, 7; Gold. Pleading, 238, error, by attorney, in the Circuit Court, de- sec. 7; Chitty's Pleading, 475; Chitty's Archprive them of a right to except to the jurisdic- bold, 688; 3 Mason's Rep. 9. tion of the court. The action was against them, an aggregate corporation, and there could be no appearance but by attorney.
Mr. Justice Barbour delivered the opinion oi The counsel for the defendants in error rely the court: on the provisions of an Act of Congress passed This is a writ of error to the Circuit Court of on the 28th of February, 1839, relating to the the United States for the Southern District of judicial system of the United States.
Mississippi. It was an action on the case in An examination of the provisions of that assumpsit, brought by the defendants in error, statute, and a fair construction of them, will citizens of Louisiana, against the plaintiffs in satisfy the court that it was meant to apply error. only to parties who, under the judicial system, The defendants in the court below appeared were properly parties to suits in the Circuit by attorney, and pleaded to the jurisdiction of Court, but who might not have been served with the court; averring in their plea that they were process. The statute was not intended to a corporation aggregate, and that their corpochange the character or the nature of the ju: rators, stockholders, or company, were risdiction of the circuit courts of the United posed of citizens of other and different States; States.
to wit, that William M. Lambeth and William Nor could that statute operate in the case be- E. Thompson, citizens of Louisiana, were, at fore the court; for the citizens of Louisiana the time that the suit was instituted, and at the who were members of the aggregate corpora- time of filing the plea, stockholders and cortion sued by the defendants in error, would porators therein. be affected by the judgment of the Circuit The plaintiff's in the court below demurred to Court, if in favor of the plaintiffs below. The this plea, assigning specially several causes funds of the bank would be appropriated to of demurrer, as follows: 1. That the plea was pay the debt; and to those funds, as stockhold- not properly entitled of any term of the court. ers, they had the same right as any other of 2. That the affidavit in support of the plea was the corporators.
not sufficient, nor was it properly attested. 3. The objections to the exceptions of the plain. That the matters set forth in the plea were not tiffs below to the plea, and this affidavit, are sufficient to abate the plaintiffs' suit. left upon the points submitted to the court. The court sustained the demurrer, and gave Whatever might be the value of these objec- judgment against the defendants for three tions, had they been urged to the receiving of thousand five hundred and seventy-five dollars the plea, they cannot be assigned as causes of and fifty-four cents, in damages; being the demurrer.
amount of the principal and interest of a cerMr. Henderson, for the defendants, contended tiñcate of deposit, on which the suit was that the objections to the jurisdiction of the brought, and for the costs. To reverse this Circuit Court had not been properly brought judgment, this writ of error is brought. forward.
In examining the correctness of the judgment A foreign minister may be sued, if he does of the court upon the demurrer, we throw not make the objection in a proper form. The out of consideration the two first causes asmagistrate, or court before whom the suit has signed, because if there were any irregularity been brought, cannot know of his exemption in the particulars stated, they could at most unless it shall be pleaded. It must be ascer. I only be urged as objections to the receiving of tained in a judicial form. Having omitted to the plea; but could not be relied upon as plead the exemption, the jurisdiction is admit- grounds of demurrer, the office of which is to ted. This is the principle which, by the rules put in issue the legal effect of a plea after it of pleading, govern the case. 2 Cranch, 240; has been received. 1 Peters's Digest, 622.
The third cause assigned, which was that The plea is defective because it excepts to the the plea was not sufficient *to abate the [*84 63] jurisdiction of the court, without the plaintiffs' suits, raises the only question to be proper affidavit to sustain it. The affidavit decided; and that is, whether, upon the state should have been made by the persons who are of the parties, as appearing upon the record, alleged to have been improperly sued; and it the court had jurisdiction of the case. should have been properly sworn to.
It will be observed that the plaintiffs were The Act of Congress of 1839 applies to this citizens of Louisiana; 8o averred to be in the case, and gave the court jurisdiction. It pro declaration, and two of the members of the vides for the absence of parties who may not corporation sued were also citizens of Louisi. have been served with process, and allows the ana. They are so averred to be in the plea, court to proceed without them, although the and the demurrer admits the truth of this avercause of action is joint.
ment. The llth section of the Judiciary Act The objection that it is not stated at what of 1789 gives to the Circuit Courts of the Unit. term the plea in abatement was filed is valid; ed States jurisdiction in cases where “the because as the rule is that no such plea shall be 'suit is between a citizen of the State where
the suit is brought, and a citizen of another that such an appearance would amount to a State."
waiver of the objection, would be to say that This court were called upon at an early peri- the party must from necessity forfeit an acod to construe this section of the Judiciary knowledged right, by using the only means Act, in relation to the very question raised by which the law affords of asserting that right. the pleadings in this case.
It was further contended that all objection to In the case of Strawbridge et al. v. Curtis et the State of the parties in this case was obvi. al. 3 Cranch, 267, they decided that where ated by the Act of Congress, passed February there are two or more joint plaintiffs, and two 28th, 1839, entitled, “An Act in amendment of or more joint defendants, each of the plaintiff's the acts respecting the judicial system of the must be capable of suing each of the defend- United States." ants in the courts of the United States, in order The 1st section of that act provides, “That to support the jurisdiction. And what is more where in any suit at law, or in equity, com. particularly applicable to this case, in the case menced in any court of the United States, there of The Bank of the United States v. Deveaux et shall be several defendants, any one or more of al. 5 Cranch, 61, this court decided that a whom shall not be inhabitants of, or found corporation aggregate, composed of citizens of within the district where the suit is brought, or one State, might sue a citizen of another State shall not voluntarily appear thereto, it shall be in the circuit courts of the United States: that lawful for the court to entertain jurisdiction, is, they in effect decided that although the ar- and proceed to the trial and adjudication of tificial being, a corporation aggregate, was not such suit between the parties who may be propa citizen, as such, and therefore could not sue erly before it; but the judgment or decree ren. in the courts of the United States, as such, dered therein shall not conclude or prejudice yet the court would look beyond the mere cor- other parties, not regularly served with process, porate character, to the individuals of whom it or not voluntarily appearing to answer. was composed; and if they were citizens of a We consider the true construction of this act different State from the party sued, they were to be this: competent to sue in the courts of the United The 11th section of the Judiciary Act, after States. But still, upon the principle of Straw. having prescribed the jurisdiction of the cir. bridge v. Curtis, all the corporators must be cit. cuit courts, as it regards the character of the izens of a different State from the party sued. parties by way of personal exemption, declares, And the doctrine of both these cases has ever "That no civil suit shall be brought before since been held to be the law of this court. It either of said courts against an inhabitant of is perfectly clear that the same principle ap- the United States, by any original process, in plies to the individuals composing a corpora- any other district than that whereof he is an tion aggregate, when standing in the attitude inhabitant, or in which he shall be found at of defendants, which does when they are in the time of serving the writ.” that of plaintiffs.
Under the operation of this clause many diffiThe application of these doctrines to this case culties occurred in practice, in cases both in law would seem to be decisive of its fate, unless and equity, in which, by the principles govern. there is something in other points which were ing courts both of law and equity, it was neces argued at the bar to obviate their force. For sary to join several defendants, some of whom it has already been stated that the plaintiffs in were, and others were not, inhabitants of the the court below were citizens of the State of district in which the suit was brought. Louisiana, and two of the members of the cor The Act of 1839 was intended to remove these poration sued were also citizens of Louisiana, difficulties; by providing that the persons not so that some of the defendants being citizens of being inhabitants, or not found within the disthe same State with the plaintiffs, it follows trict, may either not be joined at all with those that although each of the plaintiffs was ca pa- who were, or if joined, and they did not waive ble of suing, yet each of the defendants was not their personal exemption, by a voluntary apcapable of being sued in the Circuit Court of pearance, the court may go on to judgment, or Mississippi.
decree against the parties properly before it, as But it was contended at the bar that what if the others had not been joined. ever might have been the original ground of * But it did not contemplate a change in ('66 objection to the jurisdiction of the court, the the jurisdiction of the courts, as it regards the 65*) *defendants had appeared by attorney; character of the parties, as prescribed by the and that such an appearance waived all objec. Judiciary Act, and as expounded by this court; tion to the jurisdiction of the court. This is that is, that each of the plaintiffs must be capaadmitted to be a well-established rule in pleas ble of suing, and each of the defendants capable of this sort, in courts of general jurisdiction, of being sued; which is not the case in this where the plea is interposed by individual de suit; some of the defendants being citizens of fendants. We deem it unnecessary, for the pur- the same State with the plaintiffs. poses of this case, to inquire what would be There is another reason why this Act of 1839 the effect of an appearance by attorney of an cannot apply to this case. It expressly declares individual defendant, in pleading such a plea that the judgment or decree shall not conclude in the circuit courts of the United States, which or prejudice other parties not regularly served are of limited jurisdiction. But we are clearly with process, or not voluntarily appearing to an. of opinion that in the case of a corporation ag- swer. Now, the defendants in this case being gregate, no waiver of an objection to jurisdic- a corporation aggregate, any judgment against tion could be produced, by their appearing and them must be against them in their corporate pleading by attorney: because, as such a cor character: and the judgment must be paid out poration cannot appear but by attorney, to say of their corporate funds, in which is included
the interest of the two Louisiana stockholders; 1 to be a good bar against a recovery upon a con. and, consequently, such a judgment must of tract made in another State.
The 11th section of the act to establish the judi. necessity prejudice those parties, in direct concial courts of the United States, carries out the con. travention of the language of the law.
stitutional right of a citizen of one State to sue a We are of opinion that the judgment of the citizen of another State in the circuit courts of the Circuit court was erroneous, in sustaining the original cognizance" concurrent with the courts plaintiffs' demurrer to defendants' plea: it is of the several States, of all suits of a civil nature, therefore reversed, and the case is remanded to at common law and equity." It was certainly in
tended to give to sultors, having a right to sue in the Circuit Court, to be proceeded in according the Circuit Court, remedies, co-extensive with
that to law.
right. These remedies would not be so, if any pro
ceedings under an act of State legislation, to which This cause came on to be heard on the tran: of such State from suit, could be pleaded to abate
the plaintiff was not a party, exempting, a person script of the record from the Circuit Court of in a sult in the Circuit Court. the United States for the Southern District of Mississippi, and was argued by counsel; on
Na certificate of division from the Circuit consideration whereof, it is now here ordered and adjudged by this court that the judgment District of Alabama. of the said Circuit Court in this cause be, and
An action was instituted in the Circuit Court the same is hereby reversed, with costs; and of Alabama by Henry A. Suydam and William that this cause be, and the same is hereby re- Boyd, against the defendants, as administrators manded to the said Circuit Court, with direc. of David Newton, on a promissory note given tions to proceed therein according to law and by him to the plaintiffs. justice, in conformity to the opinion of this
On the trial of the cause the following ques. court
tions arose, on which the judges of the Circuit Court were divided, and the same were certified to this court:
Ist. Is the plea that the estate of the said
decedent is insolvent, sufficient in law to abate 67') *HENRY A. SUYDAM and William the said action ? Boyd, Plaintiffs in Error,
2d. If the said plea be sufficient in law to
abate said action, can the Circuit Court of the ROBERT BROADNAX and Isaac Newton, Ad- United States for the district aforesaid, refer
ministrator of David Newton, Deceased, De- said cause for adjudication and final settlement fendants in Error.
to a board of commissioners, *to be ap- [*68
pointed by a county court in one of the counties An act of insolvency executed under the author. in the State of Alabama, in pursuance of an act
ity of a State no bar to recover upon contract of the Legislature of the said State ? made in another State-jurisdiction of Cir
Mr. Curtis, for the plaintiffs, presented the cuit Court-law and equity.
1. The law of Alabama is no defense to the The plaintiffs, merchants of New York, Instituted action, because it is in conflict with a law of 1 suit in the Circuit Court of Alabama, against the the United States. administrators of the drawer of a note, dated in New York, and payable in New York.
2. The law of Alabama is void, because it is
The act of the Assembly of Alabama provides that the estate repugnant to the clause in the 10th section of of a deceased person, which is declared to be insolv. the eleventh article of the Constitution of the ent, shall be distributed by the executors or ad. United States, which inhibits any State from ministrators, according to the provisions of the statute, among the creditors, and that no suit or passing “any law impairing the obligation of action shall be commenced or sustained against any a contract." executor or administrator after the estate of the des ceased has been represented as insolvent, except in
3. Even if the law of Alabama be admitted certain cases not of the description of that on to be valid, it is no defense to the action. which this suit was instituted. Held, that the insolvency of the estate, Judicially declared under the is no defense to the action, because it is in con
On the first point, That the law of Alabama statute of Alabama, is not sufficient in law to abate a suit instituted in the Circuit Court of the United Alict with a law of the United States, Mr. States by a citizen of another State, against the Curtis said: representatives of a citizen of Alabama. The exceptions in the sixth section of the law of
The plaintiffs, residing in New York, sued Alabama, in favor of debts contracted out of the the defendants, residing in Alabama, as admin. State, prevent the application of the statute, or its istrators of a deceased person. For the de operation, in a case of a debt originating in and fense, a law of that State is relied on, the clause contracted by the deceased out of the State of of which, applicable to the case, is as follows: Alabama.
A sovereign State, and one of the States of this “Nor shall any suit or action be commenced Union, if the latter were not restrained by consti- or sustained against him” (i. e., an executor or ty, act upon the contracts of its citizens, wherever administrator), “after the estate of the testator made ; and discharge them, by denying the right of or intestate is represented insolvent." Two exaction upon them in its own courts; but the valld. ceptions are made, which have nothing to do ereignty or State, would exist and continue every: with the present case. Aiken's Digest of the where else, according to the lex loci contractus. Laws of Alabama, second edition, 1836, 152,
The constitutional and legal rights of a citizen of 664, 8vo. the United States to sue in the circuit courts of the United States, do not permit an act of Insolvency,
The 2d section of the third article of the completely executed under the authority of a State, Constitution of the United States extends their NOTE.—That discharge under foreign bankrupt zens of different States. The Judiciary Act of
judicial powers to controversies between citi. or Insolvent law is no bar or defense, see note to 4 L, ed. U. & 629.
24th September, 1789, section 11, 2 Laws of the