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Abram Sheppard and John Duncan, Plaintiffs in error, v. Peyton S. Graves.

In this case, as in the preceding, it is decided, that where the plaintiff averred enough to show the jurisdiction of the court and the defendant pleaded in abatement that the plaintiff was disabled from bringing the suit, on account of residence, it was incumbent upon the defendant to sustain the allegation by proof.

Until that was done, it was not necessary for the plaintiff to offer any evidence upon the subject.

This case was brought up by writ of errors from the District Court of the United States for the District of Texas.

The parties were the same as those in the preceding case, and the point upon which the decision of the court turned was the same as one of those decided in the preceding ease.

It was argued, in conjunction with the other, by the same counsel.

Mr. Justice DANIEL

delivered .the opinion of the court.

This is a suit between the parties to the case No. 65, and is in all its features essentially the same with the former case with one exception,, which will be pointed out.,

■ In this suit, as in No. 65, the defendants below demurred to the petition, pleaded in abatement fo the'regularity of the service of process, to the disability of the plaintiff on the score of residence, and then interposed a defence-in the nature of the general issue, but tendered no proofs in support of their defences, either in abatement, or in bar. The plaintiff, to sustain the jurisdiction of the court upon the question of residence, and to meet the pleas in abatement, offered to read the deposition of two witnesses Hugely and Blair, residents of the' city of New Orleans, in the State of Louisiana, taken de bene esse before a Commissioner-in the city of New Orleans, under the act of Congress of 1789. The reading of these depositions was objected to by the defendants, because the Commissioner did not certify that the witnesses resided at a. greater distance than one hundred, miles from the place of' trial, but stated ■ only that they were residents of the city of New Órleáns, within the Eastern District of the State of Louisiana, and beyond the jurisdiction of. the District' Court of Texas. The court permitted the introduction of oral evidence to prove that the city of New Orleans was at a greater distance than,- one hundred miles from Galveston, the plac'e of trial; and ruling also that the'court itself knew-judicially the mail, routes and distances thereof, and that New Orleans, tjie place of taking said depositions, was more than one hundred' miles from Galveston, the jilace of trial, permitted -the depositions to be read in evidence.

*513Whether the District Court erred in allowing an omission in the certificate ©f the Commissioner to be supplied by. oral evidence, or could regularly act upon knowledge assumed to be within its judicial cognizance, we do not.consider it necessary to examine, in order to dispose of the case before us. It must be recollected that the defendants below, attempted no proof whatsoever in support of any of their pleas. The plaintiff. having averred enough to show the jurisdiction of the court, and nothing having been adduced to impeach it, that jurisdiction remained as stated, and the plaintiff could lose nothing by. adducing either imperfect, evidence, or no evidence at all, in support of that which clearly existed, and which he, under the circumstances, could not be called on to sustain. Even then had the case in the District Court stood upon an issue regularly formed upon the pleas in abatement, the evidence of the. depositions was wholly unnecessary — the ruling of the court upon that evidence was immaterial, and should not impair the strength- of the plaintiff’s case, which was perfect without it. But the exception to the ruling of the court on this point, must be unavailable upon another view, as given in our consideration of the preceding case. By interposing, the plea of the general issue after their several pleas in abatement, the defendants have effectually waived those pleas, and surrendered the positions covered by them. The judgment of the Circuit Court must in this case also be affirmed.

Order.

This cau.se came on to be heard on the transcript of the re-, cord from the District Court of the United1 States for the District of Texas and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court that the judgment of the said District Court m this cause be, and the same is hereby, affirmed, with costs, and interest'until the same is paid, at the same rate per annum that similar judg- ■ ments bear in the courts of the State of Texas.

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