| U.S. Circuit Court for the District of Massachusetts | May 15, 1840
The sole question in this case is, whether the present plea can be supported, it being- filed by Urann and Copeland, alone, averring, that Van Buskirk is not a citizen of Massachusetts, as averred in the bill, but is a citizen of Pennsylvania, Van Buskirk not joining in the plea, nor contesting his own citizenship, as averred in the bill. Since the passage of the act of congress of the 28th of February, 1839, c. 36 [5 Stat. 321], this is a question of far less importance than it formerly would have been; since, even if Van Buskirk be a necessary and proper party to the bill, in the sense of a court of equity, that act enables the court to dispense with his being made a party, and to proceed to decide upon the merits, as far as it may, between the parties before it, without prejudice to the rights of other persons. Indeed, it has been for a long time the practice of the courts of the United States to dispense with the joinder of parties, who, if they were made parties to the suit, would, in consequence of their citizenship, oust the jurisdiction of the court, whenever without prejudice to their rights, the court could proceed to decide the merits of the case between the other parties properly before it See West v. Randall [Case No. 17,424]; Wormley v. Wormley, 8 Wheat. [21 U. S.] 421, 451; Russell v. Clarke’s Ex’rs, 7 Cranch [11 U. S.] 69; Mechanics’ Bank of Alexandria v. Setons, 1 Pet. [26 U. S.] 306; Vattier v. Hinde, 7 Pet. [32 U. S.] 252; Boone’s Heirs v. Chiles, 8 Pet. [33 U. S.] 532; Elmendorf v. Taylor, 10 Wheat. [23 U. S.] 152; Carneal v. Banks, Id.
In the present case, it appears to me, that the plea cannot be maintained. It is a personal privilege of Van Buskirk, and a personal exception to the jurisdiction of the court, to contradict the averment in the bill, that he is a citizen of Massachusetts, which he alone is competent to take for himself. The other defendants have no more right to plead that he is not a citizen of Massachusetts, than they would have to plead that he was an infant, or that another co-defendant was a feme covert, or was under any other personal incapacity to be sued. The citizenship of a party to a bill in equity is strictly a matter in abatement of the suit; and in no degree touches the merits. This is clear from the decision of the supreme court in Livingston v. Story, 11 Pet [36 U. S.] 393, where the court treated the plea, thattheparty was not a citizen of the state, as alleged in the bill, as a plea in abatement, founded on the personal disability or personal character of the party, although in its effect it might go to the jurisdiction of the court. In short, it is a personal right and personal privilege of the party himself, of which he alone can take the advantage, as a defendant, and with which his co-defendants have nothing to do. Suppose, in this case, Van Buskirk should come into court, and expressly admit or positively assert himself to be a citizen of the state of Massachusetts, would it be competent for any co-defendant to controvert the fact, or to insist upon an abatement of the suit, notwithstanding such an admission? Clearly, upon the true principles .of pleading, both at law and in equity, such a plea would under such circumstances be unmaintainable. The main stress of the argument in support of the plea is, that the suit only lies between citizens of different states; and, therefore, it is a question going to the jurisdiction of the court under the constitution of the United States. But if it be so, it can only apply as between the very parties, who, by a false allegation of citizenship, are brought within the jurisdiction; for, as to all other parties, who are citizens of different states, there is nothing that affects the constitutional jurisdiction of the court. The privilege, therefore, if it be one, of being exempted from the jurisdiction of the court, is one purely personal, and if the party chooses to admit, that his citizenship is rightly described, so as to found the jurisdiction against him, I am not able to perceive, what right other parties have to intermeddle in the matter.
The plea in this case is an entire novelty; and I am not aware, that it has ever been supposed for a moment, that any defendant has a right to contest the alleged citizenship, except of himself, or of some party, who is a plaintiff; for if the jurisdiction be well founded as to himself and the plaintiff, it is a matter for the consideration of the court in examining the merits of the controversy, how far it can, or ought to proceed to a decree, without having other persons before it, and how far they can properly be dispensed with. Whether, in this case, the court can properly ipake a decree for the plaintiff, without having Van Buskirk before it as a party iq his character as trustee, is a question of a very different nature from that now under discussion. Whether he is a necessary or proper party will depend upon the act of congress, and also upon the general principles, which regulate the exercise of this branch ■ of equity jurisprudence. I have no difficulty in overruling the plea and assigning the defendant to answer further in th.e premises. Plea overruled.