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JAMES CONOLLY AND OTHERS, APPELLANTS v. RICHARD TAYLOR AND OTHERS

January 1, 1829

JAMES CONOLLY AND OTHERS, APPELLANTS
v.
RICHARD TAYLOR AND OTHERS, APPELLEES.



THIS was an appeal from the circuit court of the United States for the district of Kentucky, in which court the appellants were complainants, and the appellees were defendants. In the circuit court of Kentucky, on the 20th of February 1818, Thomas Conolly, James Conolly, Margaret Conolly, David David, and Francis Badley, aliens and subjects of the king of the united kingdoms of Great Britain and Ireland, and Samuel Mifflin, a citizen of the state of Pennsylvania, filed their bill against certain defendants, claiming to have an equitable title to a large tract of lands in right of colonel John Conolly deceased, situated at the falls of Ohio, in the state of Kentucky. The defendants in the bill were Richard Taylor, Fortunatus Cosby and Henry Clay, citizens of Kentucky, and William Lytle, described in the subpoena as a citizen of Kentucky, but who was in fact a citizen of the state of Ohio. The subpoena was served on all the defendants, Mr Lytle having been found by the process in Kentucky. The answer of Mr Lytle protests against the jurisdiction of the circuit court, he being a citizen of the state of Ohio. In the further progress of the suit before the circuit court, at May term 1823, on motion on the part of the complainants, the name of Samuel Mifflin was struck out of the bill as a plaintiff, and he was made a defendant; after which he answered an amended bill filed against him. When therefore the case came on to a hearing in the circuit court, at May term 1826, the parties complainants were all aliens and subjects of the king of Great Britain and Ireland; two of the defendants were citizens of the state of Kentucky, one of them was a citizen of the state of Ohio, and Samuel Mifflin was a citizen of the state of Pennsylvania. The cause was argued upon an objection to the jurisdiction of the case in the circuit court of Kentucky, and upon its merits. This Court being divided upon the merits, and no opinion having been expressed upon any other question in the cause but that of jurisdiction; the reporter does not consider himself permitted to state any of the facts of the case, or the arguments of counsel, other than those connected with that point. The counsel for the plaintiffs in error were Mr Wirt, attorney general, Mr Wickliffe, and Mr Peters. For the defendants, Mr Sergeant and Mr Nicholas.

The opinion of the court was delivered by: In support of the jurisdiction of the Court, it was argued, that it was a subject of frequent regret that the whole jurisdiction proposed by the constitution for the courts of the United States, has not been conferred by congress on these courts. The wise policy of the constitution has failed to take effect; and justice has often fallen short and been defeated by the mere defect of the judiciary system.

The Court will not be disposed, therefore, to narrow the defective legislation which has taken place, by putting on it a too rigorous construction.

In the present instance it requires only a fair construction of the act of congress to sustain the jurisdiction. All the cases cited on the other side are admitted, but it is conceived that they do not touch the question of jurisdiction in this case.

The 11th section of the judiciary act of 1789, gives jurisdiction to the circuit courts 'of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and the United States are plaintiffs or petitioners, or an alien is a party, or the suit is between the citizen of a state where the suit is brought, and a citizen of another state.' Thus the act presents three distinct classes of cases, where the Court takes jurisdiction from the character of the parties; 1st, where the United States are plaintiffs or petitioners; 2d, where an alien is a party; and 3d, where the action is between a citizen of the state where the suit is brought, and a citizen of another state.

The counsel for the appellees suppose that this case falls within the third class, and they have cited several cases decided in the circuit courts to show that where the case does fall under the third class, one of the parties must be a citizen of the state in which the suit is brought.

If it were conceived that the case did belong to the third class, it might well be contended that the objection came too late from Mr Lytle; because it is a privilege on which the party may insist, or may waive at pleasure; and that after appearing and answering to the merits, it is too late to make it. Gracie vs. Palmer, 8 Wheaton, 699. The case of the Abbey, 1 Mason, 360. 3 Mason, 158.

Lytle appeared and answered to the merits; and although in his answer he suggests an objection to the jurisdiction of the court, he does not state the specific ground of his objection.

Besides, according to the chancery practice, a plea in abatement to the jurisdiction, and an answer to the merits cannot stand together, but the answer overrules the plea.

But the conclusive answer to the objection of the want of jurisdiction is, that this case does not belong to the third class of cases put by the judiciary act, but belongs to the second.

The third class being of suits between citizen and citizen, has been judicially settled to relate to cases, not where citizens were the nominal parties only, but where the interests also are citizen interests.

In Brown et al. vs. Strode, 5 Cranch, 303, this Court decided, that the courts of the United States have jurisdiction of a case between citizens of the same state, where the plaintiffs are only nominal parties for the use of an alien. The plaintiffs, in that, were the justices of the peace for the county of Stafford in Virginia, and were all citizens of that state. The defendant Strode was also a citizen of that state. The action was on an executor's bond: no one could have sued on that bond but the plaintiffs, to whom the bond had been given. They were, therefore, necessary and indispensable parties.

But the interests involved in the suit being the interest of an alien; the suit being for the use of the alien; the nominal plaintiffs being, quo ad hoc, merely trustees for the alien, sueing solely for his benefit, without any interest in the subject themselves, the jurisdiction was maintained on this ground and on this alone.

So here, Mifflin, one of the nominal plaintiffs, had, and still has, no manner of interest in the case. He is a mere trustee under the will of John Conolly, for the alien complainants, and the suit is brought solely for the use of aliens.

In principle the case is identical with that of Brown et al. vs. Strode. Like that it is purely a suit for the recovery of alien interests, and like that this suit is well ...


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