
    Shedden v. Custis.
    [June, 1793.]
    Federal Courts-Jurisdiction — Failure of Plaintiff to State He Is a Citizen of a Foreign State — How Taken Advantage of. — A plaintiff in tile federal court must state himself to lie the subject or citizen of a foreign state, in order to entitle the court to jurisdiction. And if he omits it, the defendant may take advantage of the omission by motion in arrest of judgment.
    General and State Governments. — For, the general and state governments should be kept separate; and each left to do the business properly be] origin g to it.
    The plaintiff did not state himself in his declaration, to be the subject or citizen of a foreign state; and the question was, if this should not be done, in order to shew that the court had jurisdiction.
    JAY, C. J. If the court has not jurisdiction, it is on account of the disability of the person, which might be pleaded in abatement; and if it could be pleaded in abatement, then *can the exception be taken advantage of, by motion in arrest of judgment, after verdict?
    Wickham, for the defendant.
    The exception appears upon the face of the declaration. Eor the charge of jurisdiction in the declaration only states that the bond itself was made within the jurisdiction, but says nothing as to the person of the plaintiff. Now jurisdiction in this court respects the person, and not the place ; for the court has jurisdiction, as well over contracts made without, as those made within the limits of, the state. The difference is, between courts of general, and those of limited jurisdiction. If the cause depended before the court of king’s bench in England, or the general court here, and there had been any disability, it should have been pleaded; because their jurisdiction is general. But the jurisdiction of this court is limited, as to persons; and therefore should be shewn, as well as that of a court, whose jurisdiction is limited, as to locality and extent. The common law authorities all shew that jurisdiction should be averred; and though they may sometimes seem to differ, yet the whole difference in any of them, is, only, what amounts to a sufficient averment, on which the authorities do not agree. Now the only difference between those cases and that at bar is, that those were inferior courts, and this a superior court: and therefore it may be argued that the cases in the former turned upon the inferiority of the court; but that argument is not satisfactory. The true reason is, not that they were inferior, but, that they were limited, courts. So is this. Therefore the plaintiff must shew that the court has a right to discuss his claim; and not, merely, that he has a right to the thing he claims.
    Campbell, e contra.
    A motion to arrest a judgment must be grounded on error apparent on the record; and the question is, if this case be so. Something should manifestly appear to be erroneous; not whether, possibly so, or not. The English authorities do not prove, that disability may be *urged after verdict. The question, in all of them, was concerning the limits of the jurisdiction of the courts, where the actions were brought. Eor being inferior courts, the superior courts at Westminster, confined them; both because derogatory to the common law, and for the sake of the venue. This, therefore, is a novel objection, and must stand on its own reasons. Some persons may sue here, others cannot. Therefore the defendant must point out the disability; for the court will not enquire into circumstances, unless he shews it. Parties are only the instruments of jurisdiction: for the jurisdiction of the court is independent of parties. There must indeed be parties before the court; but jurisdiction consists in authority to decide rights. If the defendant does not shew a want of jurisdiction, it shall be intended. Carth. 33, 34. The doctrine is, that by pleading, you admit jurisdiction. It may be urged that consent does not give jurisdiction ; but that is only where the want of it appears of record. If, indeed, the declaration had stated, that the plaintiff and defendant were both citizens of this state, the defendant’s admission would not have given jurisdiction : but the party may dispense with facts if he will. Comberbach, 2S4. Therefore, as the case now stands, it is altogether a question, as to the subject matter of complaint; and, if the plea does not state facts to oust the jurisdiction, the court will intend it is admitted. The court cannot judicially notice districts of country, or the kind of persons who sue, unless it be expressly submitted to them by the pleadings. But, after issue joined on the merits, they will not receive proof of residence, or other disability; but, of the subject matter in dispute, only. Eor the plea answers the allegations with respect to the debt, and not of the person. If inconveniences should be alleged, as that, then citizens may sue here, the answer is, that the defendant may avail himself of the incapacity of the plaintiff to sue, by pleading; and, if he does not, he must abide by it. Wickham, was about to reply, but was stopped by the court.
   *IREDEEE, Judge.

The jurisdiction of the court is limited to particular persons; and, therefore, must be averred. Eor the difference has been rightly taken by the defendant’s counsel, between courts of limited, and those of general, jurisdiction. In the latter, exceptions to the jurisdiction must be pleaded; but, in the former, the defendant is not bound to plead it; for the plaintiff must entitle himself to sue there. If the declaration had alleged, that the plaintiff was a foreigner, then the defendant must have pleaded the disability; or he would have admitted his capacity to sue. Ability to sue here, is a fact which rests more in the knowledge of the plaintiff, than of the defendant; and therefore the former should shew himself capable of suing here. It is not the same with regard to the place of contract, for that the defendant knows, as well as the plaintiff; and therefore, if there be any exception on that ground, it being a thing in the knowledge of the defendant, he should plead it, for the same reason, that the plaintiff must aver his capacity in the other case. It is important that it should appear upon the record that the court had jurisdiction; and has only decided on cases, within its cognizance.

JAY, C. J.

I, at first, thought it questionable on the ground of a difference between jurisdiction over the subject matter, and over persons. But, on reflection, I do not think the distinction is - important. The English practice has been rightly stated by the defendant’s counsel; and those rules are more necessary to be observed here, than there, on account of a difference between the general and state governments: which should be kept separate; and teach left to do the business properly belonging to it. Therefore this court should not exceed its limits; and try causes not within its cognizance. Consequently, the jurisdiction ought to appear, but it does not, in this case; and therefore, I think the judgment should be arrested.

PER CIJR. Arrest the judgment.  