$ 885. How far a waiver of preceding pleas.- At common law any matter of defense arising after a plea was pleaded as a matter arising puis darrein continuance, and might be either in abatement or bar of the action; but in either case such plea was a waiver of any plea or defense which preceded it, at least when the former was inconsistent with the latter. Elliott v. Teal, 5 Saw., 188.

§ 886. It seems that a plea of puis darrein continuance is considered as a waiver of all previous pleas; and the cause of action is admitted to the same extent as if no other defense had been urged than that contained in the plea. Wallace v. McConnell, 13 Pet., 136.

§ 887. Judgment on.- If matter in abatement is pleaded puis darrein continuance, the judgment, if against the defendant, is peremptory. Renner v. Marshall, 1 Wheat., 215.

§ SSS. Accord and satisfaction- Waiver.- After the commencement of a suit and issue formed, a party, to avail himself of accord and satisfaction occurring afterwards, must specially plead puis darrein continuance, and establish it by evidence if disputed, and pleading puis darrein continuance waives all previous defenses. Good v. Davis,* Hemp., 16. § 889. Mandamus - Resignation Plea puis darrein.-To a mandamus to compel a township clerk to fulfill an official duty, resignation before service of process was averred in the answer, and the appointment of a successor was offered in evidence, but was held inadmissible unless set up by a plea puis darrein continuance, or its equivalent. Thompson v. United States, 13 Otto, 480.

§ 890. Foreign attachment commenced in state court after commencement of suit cannot be pleaded puis darrein.— An action was instituted on a promissory note against the drawer, by which the drawer promised to pay at the office of discount and deposit of the Bank of the United States at Nashville, three years after date, $4,080. In the declaration, which set out the note according to its terms, and alleged the promise to pay according to the tenor of the note, there was no averment that the note was presented at the bank, or demand of payment made there. The defendant pleaded payment and satisfaction of the note, and issue was thereon joined. At the succeeding term the defendant interposed a plea of puis darrein continuance, stating that $4,204, part of the amount of the note, had been attached by B. and W. in a state court of Alabama, under the attachment laws of the state, and a judgment had been obtained against him for $4,204 and costs, with a stay of proceedings until the further proceedings in the case, which remains undetermined. A demurrer to this plea was sustained, and judgment given for the plaintiff for $679, the residue of the note beyond the amount attached, and a final judgment for the whole amount of the note. Held, that there was no error in the judgment of the federal court. Wallace v. McConnell, 13 Pet., 136.

e. Dilatory Pleas.

SUMMARY- Want of jurisdiction not apparent on the record to be taken by plea in abatement, $ 891, 892.- Demurrer for want of jurisdiction not a waiver of right to plead in abatement to declaration after amendment, § 893.

§ 891. An objection for a want of jurisdiction not apparent on the record must be taken by plea in abatement, and this plea is waived if a plea in bar be filed at the same time. Evans v. Davenport, § 894, 895.

§ 892. A plea in abatement on account of the citizenship of defendant must aver his citizenship and not merely his residence. Ibid.

§ 893. By filing a demurrer for want of jurisdiction defendant does not waive his right to plead in abatement to an amended declaration subsequently filed in the same case. Donaldson v. Hazen, §§ 896, 897.

[NOTES.-See $ 898-945.]

EVANS v. DAVENPORT.

(Circuit Court for Michigan: 4 McLean, 574–576. 1819.)

Opinion of the Court.

STATEMENT OF FACTS.- This is a declaration in ejectment, under the forms provided by a statute of the state. The defendant first pleads the general issue. 2d. To the jurisdiction of the court, alleging the defendant to be a resident of New York, instead of Michigan. And the plaintiff demurs for

irregularity in the order of pleading. The declaration alleges the plaintiff to be a citizen of New York and the defendant to be a citizen of the state of Michigan.

It is contended that the facts stated in the plea are conclusive against the jurisdiction of the court. The plea denies a material averment in the declaration, which can only be traversed by special plea. And it can make no difference that another plea taking issue generally is on record first. The pleas are filed simultaneously; both are good, it is contended, as pleas in bar. And it is further urged that a want of jurisdiction in a court of special and limited jurisdiction may be shown at any stage of the cause. A plea in abatement should give the plaintiff a better writ. But in this case, if the facts be true as stated, they show that this court can exercise no jurisdiction in the case.

§ 894. Want of jurisdiction, not apparent on the record, must be objected to by plea in abatement, and this is waived if filed with another plea.

This court follows the rules of the common law, which requires that the jurisdiction of the court shall first be pleaded. And it is well established (1 Chitt. Pleadings, 440), to file any other plea is a waiver of the want of jurisdiction of the court. From the face of the declaration it appears that there is jurisdiction on the ground of the parties being citizens of different states, the plaintiff being stated to be a citizen of New York and the defendant a citizen of Michigan.

It was laid down by Mr. Justice Washington, in his reports, that a want of jurisdiction may be taken advantage of at any time in the progress of the cause; and it was held at one time that as the averment of citizenship, in the declaration, was a material one, it was denied by the general issue, and the plaintiff was bound to prove it on the trial. But these decisions have long since been overruled, and the settled practice now is to require a plea to the jurisdiction where there is no want of jurisdiction apparent upon the face of the declaration. Where this averment of citizenship is omitted in the declaration, advantage may be taken of it in a motion to arrest the judgment or by a writ of error.

The circuit courts of the United States, though exercising a limited jurisdiction, yet are not inferior courts, which must show in their proceedings jurisdiction, or their judgments will be nullities. This is not the case with the judgments of the circuit court, although the citizenship does not appear in the proceedings. Their judgments are valid until reversed. The order of pleading by the common law is founded in good sense and practical convenience. If the plea to the jurisdiction be sustained, there is an end to the cause on the state of the pleadings, and this necessarily arrests the further progress of the And this plea should always be the first pleaded, for this and other considerations.

case.

§ 895. A person may reside in one state and yet be a citizen of another. But there is an objection to this plea which has not been noted in the argument. It avers that the defendant is a resident of New York. Now the plea may be true and yet the court have jurisdiction of the case. A citizen of Michigan may reside in New York for any length of time, and still maintain his citizenship in Michigan. A change of citizenship from one state to another is shown by the acts of the party. If he refrains from exercising the rights of a citizen in the state where he resides, and claims to be a citizen of the state he left, he does not lose his citizenship in such state. We suppose that the

attention of the pleader was not particularly drawn to the difference between a citizen and resident. Leave will be given to the defendant to amend his plea, both as to the order of pleading and the averment of the plea.

DONALDSON v. HAZEN.

(Circuit Court for Arkansas: Hempstead, 423-425. 1840.)

Opinion of the COURT.

STATEMENT OF FACTS.- This action of debt was brought by the plaintiff against the defendant upon three promissory notes alleged to have been executed by the defendant to Laughlan Donaldson and by him assigned to the plaintiff. In his declaration the plaintiff failed to aver the citizenship of the assignor of the notes, and at the last term of this court the defendant filed a general demurrer to the declaration, which was sustained by the court, on the ground that the plaintiff had failed to state a case of which the court could take cognizance. The plaintiff then, with the leave of the court, amended his declaration by averring L. Donaldson to be a citizen of the state of Kentucky. On the 28th of October, 1839, the defendant filed a plea to the jurisdiction of this court, averring both the plaintiff and defendant to be aliens. The plaintiff now moves the court to strike out this plea, and whether the motion should be sustained is the only question now to be considered.

§ 896. Demurrer for want of jurisdiction does not admit jurisdiction. The plaintiff contends that the defendant, by a general demurrer to his declaration, has waived the question of jurisdiction and is no longer at liberty to raise it by plea. It may be conceded for argument that if the demurrer to the original declaration did not reach the question of jurisdiction, but went only to the merits of the case, that even to the amended declaration the defendant would not be permitted to file a plea to the jurisdiction of the court. But this would not help the case, because the demurrer was sustained on the sole ground that the plaintiff had failed to state a case in his declaration of which the court could take cognizance. That this judgment of the court upon the demurrer was in accordance with the well-settled principles of law can hardly admit of a doubt.

It is settled by uniform and repeated decisions of the supreme court that the facts or circumstances upon which the jurisdiction over the case depends must be set forth in the declaration. Thus, in a suit between an alien and a citizen, the alienage of the one and the citizenship of the other must be stated. Hodg son v. Bowerbank, 5 Cranch, 303; Jackson v. Tentyman, 2 Pet., 136. When the suit is between citizens of different states, the citizenship of the parties, to show not only that they are citizens of different states; but also that one of them is a citizen of the state where the suit is brought, must be stated. 3 Dall., 382; 1 Cranch, 343; 2 id., 9, 126; 3 id., 515; 5 id., 57; 6 Wheat., 450; 1 Peters, 238.

And in a suit to recover the contents of a promissory note, or other chose in action, except foreign bills of exchange and debentures, brought by an assignee of such note, it is necessary to aver that the original promisee, through whom the plaintiff claims to recover, is an alien or citizen of another state, as the case may be, so as to show that he also might have maintained the action in the court to recover such contents. Montalet v. Murray, 4 Cranch, 46.

And when the want of jurisdiction is apparent upon the face of the declaration by reason of the omission of a statement of the facts requisite to bring the

case within the cognizance of the court, it is well settled that the defendant may take advantage of such omission, either by motion, at any time before judgment, to dismiss the suit, or after verdict he may move in arrest of judgment, or after judgment he may bring a writ of error and have the judgment reversed. 4 Wash., 624; 9 Wheat., 537; Pet. C. C., 431; 5 Cranch, 57; 1 id., 343; 2 Pet., 136.

If, then, the omission is a good ground to arrest the judgment, or to reverse it on a writ of error, it can admit of no doubt that it is a good ground of demurrer; for no principle is better established than that a demurrer will reach every defect in the pleadings which would be fatal on a motion in arrest of judgment, or on a writ of error to reverse the judgment. The defendant, then, by demurring to the original declaration, did not admit the jurisdiction of the court; for indeed the decision upon the demurrer was given upon the express ground of want of jurisdiction.

§ 897. Demurrer for want of jurisdiction does not waive defendant's right to plead in abatement to an amended declaration.

case.

The plaintiff then amended his declaration, and for the first time stated a case within the jurisdiction of the court, and which became, as it were, a new The defendant could then only call in question the jurisdiction of the court by an appropriate plea, traversing the facts alleged by the plaintiff. Shall the defendant be precluded from filing a plea denying the facts upon which the jurisdiction of the court rests, because he demurred to the original declaration on the ground that it failed to state a case within the cognizance of the court? I think not. Such a rule would be unjust. The motion to strike out the defendant's plea to the jurisdiction of the court is overruled.

§ 898. Pleas in abatement, not being received with favor, require the greatest accuracy and precision in their form, and must be certain to every intent, and are not amendable; they must not be double. Anonymous, Hemp., 215.

§ 899. How waived.— A plea in bar waives all pleas and the right to plead in abatement. Railroad Co. v. Harris, 12 Wall., 65.

§ 900. The right to plead in abatement is lost by pleading to the merits. Cook v. Burnley, 11 Wall., 659.

§ 901. It is a stringent and unbending rule of law in regard to dilatory pleas that they must be pleaded in a preliminary stage of the suit; and if a plea in bar has been filed and the cause is down for trial, such plea in bar cannot be withdrawn to allow a plea in abatement to be pleaded. Yeatman v. Henderson,* 1 Pittsb., 20.

§ 902. A plea in abatement must be pleaded before a plea in bar; for if they are pleaded together the plea in abatement will be held to be waived. Dowell v. Cardwell, 4 Saw., 217.

§ 903. A plea in abatement, filed in connection with pleas in bar, is irregular. Spencer v. Lapsley, 20 How., 264.

§ 904. By common law a plea in abatement is overruled by a plea in bar, and no rule of court is required to confirm this practice. Fenwick v. Grimes,* 5 Cr. C. C., 603.

§ 905. A plea in abatement not on oath may be treated as a nullity and set aside. Ibid. § 906. A plea in abatement that there are other defendants not taken will not be received by the court unless it first be put in upon oath. Edmondson v. Barrell, 2 Cr. C. C., 228. § 907. If a plea in abatement be bad the plaintiff need not demur, but may treat it as a nullity and sign judgment. Anonymous, Hemp., 215.

§ 908. A plea in abatement is not a waiver of process. The plea may be abandoned, and a motion to quash the writ for defective service may be substituted. Halsey v. Hurd, 6 McL., 14.

§ 909. Not allowable after general issue pleaded.- The court will not suffer the general issue to be struck out to give the defendant leave to plead in abatement. Bank of Columbia v. Scott, 1 Cr. C. C., 134.

§ 910. Plea in abatement to jurisdiction — Burden of proof.-- A defendant who would question the jurisdiction of a federal court for causes outside of the record should allege the causes in a plea in abatement, and the burden of proof is upon him to sustain them. Sheppard v. Graves,* 14 How., 505.

§ 911. Waived by plea to merits.- A plea in abatement is waived if a plea to the merits be filed at the same time or subsequently. Sheppard v. Graves,* 14 How., 505; 14 How., 512. § 912. Withdrawal of plea to merits by plea to jurisdiction.— Filing a plea to the jurisdiction under special leave of the court is in effect to withdraw a former plea to the merits, and if a demurrer to the special plea is sustained the defendant must plead over or allow judgment to be pronounced. Kern v. Huidekoper, 13-Otto, 485.

§ 913. Plea to jurisdiction, when too late.-A plea to the jurisdiction comes too late after a mandate has gone down from the United States supreme court to the court below. Whyte v. Gibbs, 20 How., 541.

§ 914. Citizenship may be the subject of plea in abatement.- Formerly it was held in some of the federal circuit courts that the averment of citizenship in a different state from the one in which the suit was brought, and which it is necessary to make in order to give jurisdiction to the federal courts, must be proved on the general issue. But the rule now is that if the defendant disputes the allegation of citizenship which is made in the declaration he must plead so in abatement. Jones v. League, 18 How., 76.

§ 915. Jurisdictional plea - Colorable assignment to evade insolvent law. A plea to the jurisdiction, on the ground that a demand has been colorably assigned in order to evade a discharge under the insolvent law, is not to be treated as dilatory and captious, like some pleas in abatement. Wallace v. Clark, 3 Woodb. & M., 359.

§ 916. Formal plea to jurisdiction, when unnecessary. When the nature of an action is such that the court is incompetent to try it, no formal plea to the jurisdiction is necessary; but the question can be raised by demurrer. Stewart v. Potomac Ferry Co., 12 Fed. R., 296.

$917. A plea to the jurisdiction concludes to the cognizance of the court by praying judgment, if the court will take cognizance of the suit; it should be most precisely stated; it should be signed by the defendant in person, and the affidavit thereto should be positive. A plea in bar waives a plea in abatement. Adams v. White,* 2 Pittsb. R., 21.

§ 918. Objection to jurisdiction, how made.- When want of jurisdiction appears on the face of the pleadings the objection should be taken by demurrer; when not, then by plea. Varner v. West, 1 Woods, 493.

§ 919. The question of citizenship of a party can only be raised by a plea in abatement in an earlier stage of the cause than a trial on the merits. D'Wolf v. Rabaud, 1 Pet., 476.

§ 920. Plea to jurisdiction, form of.—A plea to the jurisdiction ought to begin with the allegation that the court ought not, on account of the facts stated in the plea, to take cognizance of the action, and ought to conclude with the prayer whether the court will take cognizance of the action. Leonard v. Grant, 6 Saw., 603.

$ 921. Pendency of probate suit subject of. As a general rule, the pendency of a suit before a probate court having jurisdiction is pleadable in abatement to a subsequent action for the same cause. Walker v. Johnson, 2 McL., 92.

§ 922. Variance between writ and declaration may be noticed only by a plea in abatement. McKenna v. Fisk, 1 How., 241.

§ 923. Objection to right of executor or administrator to sue.- -The objection that plaintiff has no right to sue as executor may be taken only by plea in abatement. Childress v. Emory, 8 Wheat., 642.

§ 924. In a suit by an administrator, the objection that the plaintiff is not qualified to sue as administrator may be taken only by plea in abatement. Picquet v. Swan, 3 Mason, 469.

§ 925. A plea in abatement for misnomer will lie in ejectment, but the plea does not abate the suit, and the defendant having disclosed his true name must plead in chief by that name. Dixon v. Cavanaugh,* 1 Overt. (Tenn.), 366.

§ 926. Appointment of assignee pleaded to suit by bankrupt.— To a suit in the name of a bankrupt a defendant may plead the bankruptcy and the appointment of an assignee in abatement. Cook v. Lansing, 3 McL., 571.

§ 927. Rulings as to, how far subject to appeal.- Under the twenty-second section of the judiciary act of 1789 the United States supreme court cannot reverse the judgment of the court below for error in ruling any plea in abatement other than a plea to the jurisdiction of the court. Piquignot v. The Pennsylvania R. Co., 16 How., 104.

§ 928. Jurisdiction - Citizenship- Assignment of mortgage.- The question of jurisdiction arising in a case where a mortgagor and mortgagee were citizens of the same state, and the mortgagee had assigned the mortgage to a citizen of another state, should have been raised by a plea in statement. Upon the trial of the merits it was too late. Smith v. Kernochen, 7 How., 198.

§ 929. The pendency of a prior suit in a state court is not a good plea in abatement to a suit in personam in the federal circuit court. White v. Whitman, 1 Curt., 494.

§ 930. The pendency of a suit between the same parties and respecting the same subjectVOL. XXIV — 42 657