[Bradstreet v. Thomas.]

suit; because the demandant is an alien, and there is no averment that the tenant was a citizen of New York.

The above statement of the proceedings makes it evident that the dismissal of the suit, upon this ground, at this time, would be a surprise upon the demandant, who has been prosecuting the suit for many years; most probably under the impression that the averment of citizenship contained in her joinder in demurrer, was considered by this Court and by the district court, to be a sufficient compliance with the rules of pleading established by the decisions of this Court. For the averment in question was received in the district court without objection; and, indeed, would seem to have been regarded as sufficient by that court; because when the suit was dismissed there, upon the ground that the counts did not contain proper averments to give jurisdiction, no notice was taken of the want of this averment in the counts, nor any objection to the place where it had been inserted in the pleadings; and when the case was brought before this Court, on the application for the mandamus, the fault in the pleadings now charged, was not noticed by the court in the opinion delivered, and does not appear to have been brought to their attention by the counsel for the tenant. 7 Peters, 634. The demandant might, therefore, reasonably have supposed that the Court deemed the averment sufficient; because certainly the mandamus would not have been issued, commanding the district court to reinstate the case, and proceed to try it; unless this Court had been of opinion that a sufficient cause was presented by the pleadings to give jurisdiction to the district court.

The principle on which this averment has been required is purely technical. But the rule has been established by the decisions of this Court, and we do not mean to disturb it; and the proper place for the averment is undoubtedly in the declaration of the plaintiff in the

cause.

The district court was not bound to receive it in the joinder in demurrer; and clearly ought not to have received it, if it had been objected to by the tenant. But he has waived the objection, by failing to make it in an earlier stage of the cause: and after the proceedings which have taken place in the district court, and in this Court; and when the cause has been so long continued and allowed to proceed in the same condition of the pleadings and averments, it would be unjust to the demandant to dismiss it upon this mere technical

[Bradstreet v. Thomas.]

informality. The pleadings, in fact, contain all the averments required by the decisions of this Court, to give jurisdiction to the courts of the United States; and as they appear to have been acquiesced in by the tenant, and regarded as sufficient in the district court, and were not objected to in this Court when the case was here on the application for a mandamus; we do not think the informality can be relied on now, to dismiss the suit, The motion is therefore overruled.

VOL. XII.-I

JOHN M'KINNEY, WILLIAM M'CONNELL AND KAY MOSS, PLAINTIFFS IN ERROR V. JOHN CARROLL.

To give the Supreme Court of the United States jurisdiction, under the twenty-fifth section of the judiciary act, in a case brought from the highest court of a state, it must be apparent in the record, that the state court did decide in favour of the validity of a statute of the state, the constitutionality of which is brought into question on the writ of error. Two things must be apparent in the record; first, that some one of the questions stated in the twenty-fifth section, did arise in the state court; and secondly, that a decision was actually made thereon by the same court, in the manner required by the section.

Where one of three parties, plaintiffs in a writ of error, diés, after the writ of error is issued, it is not necessary to make the heirs and representatives of the deceased, parties to the writ of error; as the cause of action survives to the two other plaintiffs in error.

IN error to the court of appeals of the state of Kentucky.

This case was argued by Mr. Jones for the plaintiffs in error, and by Mr. Woodward for the defendant. The argument was upon points upon which the Court expressed no opinion; as on consideration of the case, it was found not to be within the jurisdiction of the Supreme Court; to which it had been removed by a writ of error to the court of appeals of Kentucky. The arguments of the counsel are not, therefore, inserted in the report.

Mr. Justice M'KINLEY delivered the opinion of the Court.

This is a writ of error to a judgment of the court of appeals of Kentucky, affirming a judgment of the Jessamine circuit court.*

The heirs of John Moss recovered a judgment, in ejectment, against the defendant in error, in the said circuit court, at the October term, 1815, for a tract of land in Jessamine county; and, at the same term, commissioners were appointed, in conformity with the act of the 31st of January, 1812, concerning occupying claimants of lands, to value

* At the last term of this court, the death of John M'Kinney, one of the plaintiffs, was suggested, and the cause continued for revivor; under the mistaken opinion that he was the only plaintiff. On inspection of the record, it appears that there are two other plaintiffs; and, as the cause of action survives to them, the revivor is unnecessary.

[John McKinney et al. v. John Carroll.]

the land in controversy, the improvements thereon, &c. At a subsequent term of the court, the commissioners made their report; and, among other things, reported the improvements on the land to be of the value of one thousand six hundred and ninety-eight dollars. At the October term, 1819, of the said circuit court, on the motion of the defendant, judgment was rendered in his favour, against the plaintiffs in ejectment, for said sum of one thousand six hundred and ninety-eight dollars. And, on the 25th day of October, 1819, the plaintiffs in error, as sureties of the plaintiffs in ejectment, executed a bond to the defendant, with condition to pay said sum of one thousand six hundred and ninety-eight dollars, in two equal annual instalments, with interest, as authorized by said act; which bond had, by law, the force of a judgment; and execution was authorized to be issued thereon, as in case of replevin bonds.

On the 7th day of December, 1821, an execution issued on the bond, against the plaintiffs in error; who, availing themselves of the benefit of a statute, then in force, replevied the debt for two years more. When execution issued against them, on the replevin bond, they applied to the judge of said circuit court, for a writ of error coram vobis; and in their petition assigned, in substance, these errors: first, the act of the 31st of January, 1812, concerning occupying claimants of lands, is a violation of the compact between Virginia and Kentucky, a. a violation of the constitution of the United States; and therefore the bond and other proceedings, under it, are void: second, but one bond was given for both instalments, when there should have been a bond given for each instalment: third, but one execution issued for both instalments, when there should have been an execution issued for each instalment: fourth, the law under which the replevin bond was given, is a violation of the constitution of Kentucky, and a violation of the constitution of the United States; and, therefore, the bond is void: fifth, the whole proceedings are erroneous, wanting form and substance.

The judge of the circuit court awarded the writ of error coram vobis, on the 15th day of March, 1824, returnable to the next term of said circuit court. At which term, on the 28th day of April, 1824, by judgment of the court, the writ of error coram vobis was dismissed. From this judgment, the plaintiffs in error appealed to the court of appeals; and assigned, there, the following errors: first, the court erred in giving judgment upon the several matters and errors alleged in the petition for the writ of error coram vobis, and the assignment

[John M'Kinney et al. v. John Carroll.]

of errors therein contained: second, the court ought to have quashed the said execution, bond, &c. as prayed for in the petition and writ of error coram vobis. Upon the hearing of the cause, the court of appeals affirmed the judgment of the circuit court.

The jurisdiction of this Court over this cause, was not questioned at the bar; but the question appears necessarily to arise on the record, and must therefore be decided by the Court. The 25th section of the judiciary act of 1789, confers appellate jurisdiction on this Court, from final judgments and decrees, in any suit in the highest court of law or equity of a state, in which a decision of the suit could be had; where is drawn in question the validity of a treaty, or statute of, or an authority exercised under the United States, and the decision is against their validity: or where is drawn in question the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the constitution, treaties, or laws of the United States, and the decision is in favour of their validity: or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under, the United States, and the decision is against the title, right, privilege or exemption set up or claimed by either party.

In this case, two statutes of Kentucky have been drawn in question, on the ground of their repugnance to the constitution of the United States. But, whether the court of appeals decided in favour of their validity, will depend first, upon, whether the questions arising under those statutes were not, or might have been, decided upon the authority of the state laws, without involving their validity under the constitution of the United States; and, secondly, whether the record of this case shows that the court did decide in favour of their validity.

A question arose at the bar, whether the judgment of the circuit court, in favour of the defendant, and against the plaintiffs in ejectment, was before the court of appeals, on the trial there. The counsel for the plaintiffs in error, insisted that it was; and, therefore, a proper subject of examination in this Court. The plaintiffs in error were not parties to the judgment of the circuit court. They became parties, in the record, by being the sureties of the plaintiffs in ejectment, in the improvement bond; which was subsequent to, and, in fact, the fruit of that judgment. The appeal which they took, was from the judgment of the circuit court, upon the writ of error coram vobis; and the errors which they assigned, in the court of appeals, limited the