US SUPREME COURT DECISIONS

The demandant, a subject of the King of Great Britain, instituted an action by writ of right in the District Court for the Northern District of New York, against the defendant, a citizen of New York. In the declaration, there was no averment that the defendant was a citizen of New York. The defendant pleaded to the first count in the declaration and demurred to the second and third counts; the demandant joined in the demurrer and averred that the defendant was a citizen of New York. In the subsequent proceedings in the case in the district court and afterwards in the Supreme Court, no exception was taken by the defendant that there was no averment in the declaration that the defendant was a citizen of the United States, and not until the case came a second time before the Supreme Court, to which it was now brought by a writ of error, prosecuted by the demandant in the writ of right. The defendant moved to dismiss the writ of error, for the want of an averment of the citizenship of the defendant in the declaration. The court overruled the motion.

The district court was not bound to receive the averment of the citizenship of the defendant in the joinder in demurrer, and clearly ought not to have received it if it had been objected to by the tenant. But he has waived the objection by failing to make it at an earlier stage of the cause, and after the proceedings which have taken place in the district court and in this Court, and when the cause has been so long continued and allowed to proceed in the same condition of the pleadings and averments, it would be unjust to the demandant to dismiss it upon this mere technical informality. The pleadings in fact contain all the averments required by the decisions of this Court to give jurisdiction to the courts of the United States, and as they appear to have been acquiesced in by the tenant and regarded as sufficient in the district court and were not objected to in this Court when the case was here on the application for a mandamus, the informality cannot be relied on now to dismiss the suit.

Mr. Beardsley moved to dismiss the writ of error, it not being stated in the writ or declaration that the defendant was a citizen of the State of New York. The plaintiff is an alien, and this is stated in due form, but nothing is said of the citizenship of the defendant.

The Constitution of the United States gives jurisdiction to the courts of the United States when an alien is a party who sues a defendant, a citizen of the state in which the suit may be brought, and it has been expressly decided that both parties must be stated descriptively in the pleadings. And where, as in this case, jurisdiction depends on the character of the parties, the averment of character chanrobles.com-red

Page 37 U. S. 60

is not matter of form, but of substance, it may be traversed, and in that event must be proved like any other material fact. Cited, 9 U. S. 5 Cranch 303; 4 U. S. 4 Dall. 12; 3 U. S. 3 Dall. 382; and 1 Cond. 170, where all the cases are collected in a note.

There is no averment of the value of the property in either count of the plaintiff's declaration, although it appears from the bill of exceptions, to have been of the value of two thousand dollars. There is, however, no doubt of the right of the party to prove the value of the property to be such as will give the right to a writ of error; this is not now taken as an objection to the proceeding to bring the case before this Court. The objection, so far as respects the point of value, is that the court below had no jurisdiction, there being no averment that the property was worth more than five hundred dollars. The defendant relies on the absence of the necessary averment of the citizenship of the defendant, as a sufficient ground to dismiss the writ of error, the District Court of New York not having had jurisdiction to entertain the cause. chanrobles.com-red

Page 37 U. S. 62