De Sobry v. Nicholson

Mr. Justice SWAYNE

delivered the opinion of the court.

No exception can be considered here which was not taken in the court below.*

The point relied upon to reverse the judgment is not that the copartners of the plaintiff below could not assign their interests in the original contract so as to vest in him the right to sue in his own name alone, but that one of the assignors was, at the time of the commencement of the action, a citizen and resident of the same State with the defendant, and that hence the Circuit Court had no jurisdiction.

To this there are two answers.

The objection to jurisdiction upon the ground of citizenship, in actions at law, can only be made by a plea in abatement. After the general issue, it is too late. It cannot be raised at the trial upon the merits.† If a plea in abatement be filed with the general issue, the latter waives the former.‡ Where a plea in abatement is relied upon, the burden of proof rests upon the defendant.§ In equity, the defence must be presented by plea or demurrer, and not by answer.ǁ The court below properly overruled the motion.

We thiuk, also, that a new contract between the plaintiff and the defendant, and its execution by the plaintiff, are substantially averred, and that the original contract is set out as inducement. It is said by the counsel for the plaintiff in error, that if such a contract be alleged, it is done with careful ambiguity and indefiniteness. Conceding this to be so, it is a ease, not of a defective title, but of a title defectively stated, which is always cured by the verdict.*

Judgment aeeirmed with costs.

* Stoddard et al. v. Chambers, 2 Howard, 285; McDonald v. Smalley et al., 1 Peters, 620.

† Smith et al. v. Kernochen, 7 Howard, 216.

‡ Bailey v. Dozier, 6 Id. 30; Sheppard et al. v. Graves, 14 Id. 505.

§ Ib. 505, 512.

ǁ Livingston v. Story, 11 Peters, 351.

* 1 Chitty’s Pleading (10th American ed.), 672.