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Beard v. Bowler.

facts as admitted by the pleadings? If this question is answered in the negative, it is clear that the demurrer to the plea must be overruled.

Without adverting to all the points brought to the notice of the court, there is one consideration that is decisive as to the bill as framed. The bill, as before noticed, avers that the defendant "owns and is the proprietor of the Central Kentucky Railroad, and as such proprietor has infringed the plaintiff's patent." The plea explicitly denies the averment of ownership, asserting that the road, since January 1, 1861, has been held and owned by a joint stock company. But the plea does not directly respond to the allegation of an infringement between June 12, 1861-the date of the patent-and the formation of the joint stock company. The demurrer to the plea admits all the facts set forth in it. And one of these facts is, that the defendant was not, at the filing of the bill, and has not been since January 1, 1861, the proprietor of the road. It is clear, therefore, that the plaintiff can have no claim against the defendant individually, for any infringement of the plaintiff's patent occurring after the joint stock company was formed. This proposition needs no argu

ment or authorities to support it. It results, therefore, that the defendant is sued in a wrong capacity, namely, as the sole owner of the road, whereas he is jointly concerned with others, as a stockholder.

No principle in equity practice is more indisputably settled, than that a plaintiff can obtain a decree only on the case made in the bill. The allegata and the probata must correspond. The allegation, therefore, of the defendant's ownership of the road, is material and must be sustained. It is explicitly averred that the defendant, at the time the bill was filed, was the sole owner. As before stated, on the pleadings this allegation is in direct contradiction of the fact. And it follows that unless the bill is amended to meet the fact, no decree can be entered against the defendant.

McCloskey v. Cobb & Co.

The objection that the plea is defective, in not responding to all the allegations of the bill, is not sustainable. Judge Story says (Equity Plead. 537, 538): "A plea may be bad in part and not in the whole;" and it "may be either to the whole bill, or to a part only." But "if the plea is to the whole bill, but does not extend to or cover the whole of the bill, it is bad."

But if there is any doubt as to the sufficiency of the plea in the particular referred to, the court, if requested, will grant leave to the defendant to amend his plea to meet all the allegations of the bill.



In the courts of the United States, if at any stage of a suit it becomes apparent that the court has not jurisdiction no further proceedings will be had, and the case will be dismissed on that ground as to those parties to whom the objection applies.

A suit was brought by a citizen of Illinois in the Southern District of Ohio upon a joint contract against two defendants, one of whom resided in said district and the other in the State of Indiana. The declaration averred the residence of the defendants, and the return of the marshal showed service on both, but the declaration did not aver that the defendant residing in Indiana was served within the Southern District of Ohio: Held, that in such case it was not necessary to aver on the record that the defendant, residing in Indiana, was served within said district, and that by virtue of section 1 of the act of February 28, 1839, jurisdiction was conferred upon the court to proceed to the trial and adjudication of such suit as against all parties regularly served with process. Where a co-defendant, who resides in a district other than the one where suit is brought, voluntarily appears and pleads to the suit jointly with the other defendants, it is a waiver of any exception to the jurisdiction of the court.

Aaron F. Perry, for plaintiff.

R. M. Corwine and T. D. Lincoln, for defendants.

McCloskey v. Cobb & Co.


In this case a motion has been made and fully argued to dismiss this case as to the defendant Cobb, on the ground that as to him this court has no jurisdiction. The suit is brought on a joint contract or liability on the part of the defendants. The declaration avers that the plaintiff is a citizen of the State of Illinois, and that the defendant Christy is a citizen of Ohio, and Cobb a citizen of Indiana. The return of the process shows service on both the defendants, but the declaration does not aver that Cobb was served within this district.

The defendants have at a previous term entered their appearance by counsel, and have filed a joint plea of the general issue to the suit, and have also interposed some intermediate motions in the case.

The question for the decision of the court is, whether from the facts averred in the declaration there is jurisdiction as to the defendant Cobb. It is insisted by his counsel, that in a joint action the plaintiff must not only have the right to sue in this court, but that both of the defendants must be liable to be sued here, and that Cobb, being a citizen of Indiana, can not be amenable to the jurisdiction of this court. It is a well-settled principle in the courts of the United States, affirmed by repeated decisions of the Supreme Court, that if at any stage of a suit it becomes apparent that the court has no jurisdiction, no further proceedings will be had, and the case will be dismissed on that ground as to those parties to whom the objection applies.

The present motion presents two questions: 1. Whether the defendant Cobb, having appeared in the action and joined with his co-defendant in a plea of the general issue, can now avail himself of the want of jurisdiction in the court. 2. Whether, if he has not waived his right to object to the jurisdiction, such objection can be sustained on the general ground that it is not conferred by statute.

1. As to the first of these inquiries, upon the authority of the case of Gracie et al. v. Palmer et al., 8 Wheaton, 699,

McCloskey v. Cobb & Co.

That was a suit

there seems to be no reason for doubt. brought by alien plaintiffs, in the Circuit Court of Pennsylvania, against the defendants, citizens of the State of New York. In the Supreme Court objection was taken to the jurisdiction of the Circuit Court of Pennsylvania, that the record did not show the defendants were inhabitants of or were found in the District of Pennsylvania at the time of the service of process. Chief Justice Marshall delivered the opinion of the court overruling the objection. He held "that it was not necessary to aver on the record that the defendant was an inhabitant of the district or found therein;" and "that it was sufficient if the court appeared to have jurisdiction by the citizenship or alienage of the parties." It was also held, that "the exemption from arrest in a district in which the defendant was not an inhabitant, or in which he was not found at the time of serving the process, was the privilege of the defendant, which he might waive by a voluntary appearance; that if process was returned by the marshal served upon him within the district, it was sufficient; and that where the defendant voluntarily appeared in the court below without taking the exception, it was an admission of the service, and a waiver of any further inquiry in the matter."

This decision was under section 11 of the judiciary act of 1789, which provides, among other things, that the courts of the United States shall have jurisdiction when the suit is between a citizen of the State where the suit is brought and a citizen of another State; and provides further, "that no civil suit shall be brought in a circuit court against an inhabitant of the United States by any original process in any other district than that whereof he was an inhabitant, or in which he shall be found at the time of serving the writ."

In the case cited from 8 Wheaton, as in the case before this court, there was no averment in the declaration that the defendants, not being citizens of the State in which suit was brought, were served with process within that

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McCloskey v. Cobb & Co.

State. The court held that the return of service by the marshal, as to a party not a citizen of the district where the suit was brought, was conclusive evidence that he was found within such district, and therefore liable to process there. And that if he wished to avail himself of the personal privilege of exemption from being sued in such district, he must do so before appearing to the suit; and that having voluntarily appeared, it was an admission of the service and a waiver of all exception to the jurisdiction. It would therefore seem clear, upon the authority of this case, that the voluntary appearance of the defendant Cobb, and pleading to the suit jointly with his co-defendant, was a waiver of any exception to the jurisdiction of the court, and that the present motion might be overruled on that ground.

2. The second point suggested, namely, whether supposing the objection to the jurisdiction is not waived as to the defendant Cobb, is there apparent on the face of the declaration such a clear want of jurisdiction as to require the court to dismiss the case as to him, I shall notice very briefly. The argument in support of the present motion is, that as section 11 of the act of 1789 limits the jurisdiction of the circuit courts, in reference to the citizenship of the parties to suits "between a citizen of the State where the suit is brought and a citizen of another State," and that as the defendant Cobb is a citizen of Indiana, and the plaintiff a citizen of Illinois, the court can not take jurisdiction as to Cobb. And the exception is probably well taken, if the question depends for its solution on the construction of the clause of the act of 1789 just quoted. I do not propose to discuss or decide whether this restrictive clause is in conflict with the provision of the constitution of the United States declaring that the jurisdiction of the courts shall extend "to controversies between citizens of different States." This language is very comprehensive, and certainly affords no intimation of an intention to limit the jurisdiction to cases "between a citizen of the

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