Opinion
November 1808.
A frivolous plea will be stricken out on motion, and may be treated as a nullity. [See Nelson v. Cummins, 1 Tenn. 436, and cases there cited.]
Semble, in the Federal Court, a plea in abatement for a variance between the writ and declaration, in this, that the writ did not state the citizenship of the parties, while the declaration did, is frivolous.
OVERTON, for the plaintiff, moved that this plea might be stricken out as being frivolous. It is not necessary that the writ should state citizenship, it is sufficient if it be inserted in the declaration. The writ makes no part of the record after the determination of a suit; and if the King's Bench practice is to prevail here, as stated in 1 Cranch, XVI. Rule 7, it is unimportant whether there was any original writ in this case or not. In the Bang's Bench if the defendant be in custody of the marshal on any other account, he may be declared against, as being in custody.
1 Tidd. Pr. 403, 585, 623; 5 Term Rep. 402; 1 Str. 1232; 1 Com. Dig. by Kyd. 56, D. 7.
The act of Congress which erects this court gives it power to make all necessary rules and orders preparatory to the trial, or determination of the cause.
If a sham plea, or one decidedly frivolous, should arrest the progress of this court the powers conferred would be rendered inefficient, and as delay is too frequently the object with defendants, six, if not twelve months' delay, would arise in almost every case by a reference to the circuit judge. This could never have been the intention of the act; despatch was its object, and the Court will put such a construction upon it as will avoid a delay of justice, as well as effectuate the design of the legislature. In England, a plea in abatement cannot be put in after a general imparlance, which is equivalent to a continuance. This plea ought to have been put in at the first rule day, after filing the declaration, otherwise it cannot be done. In the State courts the pleadings are made up in court. Three days are allowed to plead after the declaration filed. And if a defendant omit to plead in abatement within the three days he cannot do it afterwards. This of itself is sufficient to authorize a rejection of the plea, if it were good; the plea however is manifestly frivolous. There is no variance, the declaration, being an amplification of the writ, is not inconsistent, nor does it vary, but enlarges it. It is the usual form, 1 Guil. Bac. tit Courts D. 4, pp. 105, 106. This authority expressly states, that, in courts of limited jurisdiction as this is, it is not only necessary to state in the declaration the facts which are necessary to give the Court jurisdiction, but to prove them on trial. In this view of the subject, which is believed to be a correct one, a plea in abatement respecting the jurisdiction of the Court never can with propriety obtain, or at least there can be no absolute necessity for it. If the necessary citizenship of the parties should not appear by averment in the declaration the defendant may demur. But if he should not the Court cannot try the cause for want of jurisdiction, which must appear from the pleadings: and if citizenship were alleged, if not proved on the part of the plaintiff on the trial, or admitted either tacitly or expressly, the Court would always direct the jury to find for the defendant. It is sufficient, after trial and judgment, if citizenship appear in any part of the record. This plea might have been considered as a mere nullity, and judgment by default taken. But the plaintiff had his election to move the Court as he has done.
See 3 Johns. 541; 2 Caines, 56; 3 Caines, 97, 129, 368; Coleman, C. P. 80, 416; 10 East, 237.
5 Bac. 352 C. Guil. ed.; Barnes, 345.
1 Bac. Ab. 106; 1 Binn. 142.
2 Cra. 9; 3 Cra. 496; 3 Dall. 382; 4 Term Rep. 520.
WHITESIDE, for defendant.
Plea in abatement for a variance between the writ and declaration. The writ did not state the citizenship of the plaintiff nor defendant, but the declaration did, and this was the variance set out in the plea.
ordered the plea to be struck out.