THIS case was brought up, by writ of error, from the Circuit Court of the United States for the district of Indiana. On the 18th of March, 1857, Hiram Clearwater, a citizen of Ohio, brought a suit against Johnson, Meredith, and Tyner, citizens of Indiana; and in the declaration said, that the 'defendants, together with one Caleb B. Smith, who, at the time of the commencement of this suit, was not a citizen of the State of Indiana, and is therefore not joined as a defendant herein, made and delivered to the plaintiff their certain written agreement,' &c., &c. The cause of action was a written agreement, signed by the four persons above named, guarantying that the stock in a railroad company should be at par within a certain time, in consideration that Clearwater had executed a deed of conveyance of land to Meredith, (to whom the same had been sold by the company,) Clearwater having previously contracted to sell it to the company. The three defendants named in the caption appeared and filed the following demurrer: 'The said defendants, by counsel, come and say the declaration of the said plaintiff, and the several counts therein contained, are severally insufficient in law to enable said plaintiff to have and maintain his action against said defendants, and for cause of demurrer shows to the court the following: '1 The jurisdiction of the court is not shown by proper averment. '2. No sufficient consideration is shown for the undertaking. '3. The several counts do not contain facts sufficient to constitute a cause of action.'This demurrer was sustained by the court below, and a writ of error brought this ruling before this court. It was argued by Mr. Pugh for the plaintiff in error, and Mr. Thompson for the defendants. With respect to the first ground of demurrer, Mr. Pugh contended that the non-joinder of Smith was excused by the first section of the act approved February 28, 1839, (5 Stat. at L., 321, 322; 14 Peters, 60;) and, moreover, the omission should have been pleaded in abatement. It was not a ground of demurrer. With respect to the other two grounds, the conveyance of the land to Meredith was a sufficient consideration for the promise of the defendants.
The opinion of the court was delivered by: Mr. Justice McLEAN delivered the opinion of the court.
Mr. Thompson contended that the omission was fatal, inasmuch as the declaration does not show a case of which the Circuit Court had jurisdiction. The rule is this: that when there are two or more plaintiffs or defendants, each of the plaintiffs must be capable of suing, and each of the defendants of being sued, in order to support the jurisdiction. Bank of Vicksburg v. Slocomb et al., (14 Pet., 64,) where this interpretation is given to the act of February 28, 1839. (5 U. S. Stat., 321.) The declaration here should show that Smith is a citizen of a different State from the plaintiff; for, in the Federal courts, jurisdiction must be shown. If it is not shown, the objection is fatal, at any stage of the case. It needs no plea. And this is the ground, evidently, upon which the demurrer was sustained below.
This is a writ of error to the Circuit Court of the United States for the district of Indiana.
The plaintiff, who is averred to be a citizen of the State of Ohio, brought his action against Solomon Meredith and Thomas Tyner, citizens of Indiana, on the 12th July, 1853, together with Caleb B. Smith, who, at the time of the commencement of this suit, was not a citizen of the State of Indiana, and is therefore not joined as a defendant herein, &c.
The declaration has three counts, one of which contains the following guaranty:
'Whereas Hiram Clearwater, of the city of Cincinnati, on the 6th of May, 1853, contracted with the Cincinnati, Cambridge, and Chicago Short Line Railway Company for the sale of a tract of land situate in Wayne county, Indiana, lying on the national road, about four miles east of Cambridge city, and adjoining the lands of John Jacobs and others, containing three hundred and twenty acres, for the consideration of ten thousand dollars, to be paid in the capital stock of said company at par; and whereas, in such contract of sale, it was agreed that said company should furnish to said Clearwater a guaranty that the capital stock of said railway company should be at par within one year from the completion of the entire line of said road: Now, in consideration that the said H. Clearwater has, with the consent of the said company, and at our request, executed a deed of conveyance to Solomon Meredith for said land, to whom the same has been sold by the said company, we, the undersigned, hereby guaranty that the said stock of said company, which has been issued to said Clearwater in pursuance of said contract, shall be worth par in the city of Cincinnati within one year from the time the said railroad shall be completed from Cincinnati to Newcastle, Indiana, and that said road shall be completed within two years from the 1st day of October, 1853, and signed by Pleasant Johnson, S. Meredith, Caleb B. Smith, and Thomas Tyner.'
The defendants, by counsel, come and say the declaration of the said plaintiff, and the counts therein contained, are severally insufficient in law to enable said plaintiff to have and maintain his action against said defendants; and for cause of demurrer shows to the court the following:
1. The jurisdiction of the court is not shown by proper averment.
2. No consideration is shown for the undertaking.
3. The several counts do not contain facts sufficient to constitute a cause of action; wherefore the defendants pray judgment, &c.
If this be regarded as a plea to the jurisdiction of the court, it is argued that the suit is brought on a joint contract executed by the defendants in error, when only two of them were served with process, and the third one, Caleb B. Smith, who, at the time of the commencement of the suit, was not a citizen of the State of Indiana, and is therefore not joined as a defendant herein, &c.
The first section of the act of February 28th, 1839, provides that 'where, in any suit at law or in equity commenced in any court of the United States, there shall be several defendants, any one or more of whom shall not be inhabitants of or found within the district where the suit is brought, or shall not voluntarily appear thereto, it shall be lawful for the court to entertain jurisdiction, and proceed to the trial and adjudication of such suit between the parties who may be properly before it; but the judgment or decree rendered therein shall not conclude or prejudice other parties not regularly served with process, or not voluntarily appearing to answer.'
In the case of the Railroad Bank of Vicksburg v. Slocomb et al., (14 Peters, 65,) it is said the 11th section of the judiciary act declares that no civil suit shall be brought, before either of said courts, against an inhabitant of the United States, by any original process, in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ.
It has been held that this is a personal privilege of not being sued out of the district in which the defendant may live, or in which he shall be found on serving the writ, and that it may be waived by the defendant. And it is said, in the above opinion, 'that it did not contemplate a change in the jurisdiction of the courts, as it regards the character of the parties, as prescribed by the judiciary act, and expounded by this court–that is, that each of the plaintiffs must be capable of suing, and each of the defendants ...