Hilliard v. Brevoort

12 F. Cas. 188, 4 McLean 24

Opinion

OPINION OF THE COURT. This is a bill in chancery, to which a demurrer is filed, on the ground that there is no positive averment in the bill that the plaintiff is a citizen of the state of Ohio. The averment of citizenship, it is contended, must be clear and positive, as on that depends the jurisdiction of the court. [Thatcher v. Powell] 6 Wheat [19 U. S. 119. If this averment be doubtful, it can not be held sufficient. If the averment be a mere residence, and not a citizenship, it will not be within the law. But this averment need never be proved, unless it be denied in the plea and answer. If the citizenship be improperly or-falsely alleged, the defendant must reply to it if he wish to controvert the fact averred. At one time, it was held by a circuit court of the United States that the fact of citizenship must be proved on the general issue,- but this has long since been overruled,- -and the law is now settled as above stated. The court will permit an amendment, as a matter of course, of a defect of the kind alleged; but in the present bill, we think the averment is certain, and within the law. The demurrer is overruled.