#### Diedrich Muller *v.*The United States.

*On Demurrer.*

*The action is brought under the “ Abandoned and captured property act” by a citizen of Hanover. The defendants plead specially that the claimant is an alien. The claimant demurs to the sufficiency of the plea. '*

I. When the en acting' clause of a statute makes an exception to the general provisions of the. act, a party pleading the provisions of the statute must negative the exception. But when the exception is contained in a proviso, and not in the enacting clause, the party pleading the statute need not negative the exception. It is for the other party to set it up in avoidance of the general provisions of the statute.

II. A plea, confessed by demurrer, of the alienage of the claimant in an action brought under the *‘‘Abandoned and captured property act” (12*Stat. L., 820) is sufficient to bar the action, since the *Act 27th July,*J868, (15 Stat. L., c. 276, § 2.) The defendants need not in their plea negative the exceptions contained in the proviso to the second section of that act in favor of the subjects ‘ ‘ *of any government which accords to citizens of the United States the right to prosecute claims against such government in its courts.”*It is for the claimant to set up and prove that he comes within the proviso.

*Mr. T. J. D. Fuller,*for tbe claimant,

cites treaty witb Hanover, 8 Stat. L., 552, and as to tbe insufficiency of tbe plea, 2 Curtis U., p. 265.

- *Mr. B. 8. Hale,*special counsel of tbe Treasury for tbe defendants :

I. Tbe plea contains a substantive averment of facts constituting a bar to tbe action under tbe second section of tbe act of 27tb July, 1868, and is sufficient in substance and form.

1. Tbe demurrer of tbe claimant is a general demurrer only, and reaches no defects wbicb are simply formal.' Upon general demurrer allegation of alienage simply is good, even if on special demurrer tbe fact constituting alienage, or tbe country of wbicb tbe aben is a citizen, must be designated. TJpon general demurrer, too, tbe objection cannot be taken that tbe plea only recites anew matters contained in tbe petition, as in common-law courts tbe objection that a plea amounts to tbe general issue only must be taken by special demurrer and not by general.

2. Tbe plea alleges all that tbe statute requires it to allege to *62constitute a bar to tbe action. The statute only requires the defence to plead that the acts were done, &c., under certain statutes. This is precisely what the plea does, and the allegation of alienage is simply byway of inducement to the defence established by the statute, which declares that these facts, when pleaded and proved, shall constitute a bar to the action.

3. It is not necessary that this plea should negative the proviso to section 2. The rule is well settled, as to pleadings and proofs, that where the exception to a statute occurs by way of proviso, or in an independent section or statute, it need not be negatived in plea. The rule is otherwise where the exception occurs in the body of the enacting clause. In this case the provisions of the proviso are proper matter of reply by the claimant. The burden is upon him both in pleading and proof.

II. The treaty between the United States and Hanover in no degree affects the question raised upon this demurrer.

1. The statutes creating this court, and regulating and limiting its jurisdiction, are all subsequent in date to the treaty. If they conflict, the court must follow the statute and not the treaty.

2. The statute of 1868 is not in conflict with the *terms*of the treaty of 1810 with Havover, either in letter or spirit. By its letter, the last clause of Article 1 of the treaty only gives to subjects or citizens of the respective countries, each in the other, the same rights which are enjoyed by native citizens or subjects, not which shall or may be hereafter enjoyed by therm In its spirit the whole moving principle of the treaty is reciprocity. This is precisely the spirit and effect of the statute of 1868; that subjects of Hanover may have in this court the same right accorded by Hanover to citizens in prosecuting the government of Hanover in its courts. What those rights are, is matter of fact to be proved by the claimant.

Milligan, J.,

delivered the opinion of the court:

This cause was instituted under the act of March 12,1863, providing for the collection of captured and abandoned property; and it is now submitted to us on the claimant’s demurrer to the defendant’s second special plea; the demurrer to the plea of the statute of limitations having been, during the argument, withdrawn, with leave to reply. The plea under consideration is *63predicated outlie 2d section of tlie act of Congress approved July 27,1868, and is in substantial conformity to tbe language of tbe act. It avers tbat tbe claimant is an *alien,*and therefore prohibited from prosecuting bis action against tbe United States. Tbe plea is, in all respects, formal, and free from, technical objections; and, if true, by tbe plain terms of tbe statute is a complete bar to tbe action.

Tbe effect of tbe demurrer, resting as it always does upon no matter collateral to tbe pleading which it opposes, is to admit .that tbe facts alleged in the plea are true; and therefore tbe only question for tbe court is, whether, assuming such facts to be true, they sustain tbe case of tbe party by whom they are alleged. No other question is before us, and none other can be, in tbe present aspect of this record considered. Tlie treaty with Hanover, and tbe rights of tbe subjects of tbat government to maintain this action, -which was rebed on in argument, cannot tlius collaterally be drawn into consideration. We can loolc to nothing but tbe face of tbe plea, and, by the well-established rules of pleading, determine nothing but the sufficiency, in point of law, of the substance of tbe matter of tbe jilea to which tbe demurrer is opposed.

Objection, however, is taken to tbe sufficiency of the plea, because it does not in terms negative tbe exception contained in tbe *proviso*of tbe second section of tbe act of July 27,1868. Tbe body of this section in the most emphatic terms denies tbe right of *aliens*to prosecute an action or suit, on account of any act done, or omitted to be done, under any of tbe acts of Congress therein mentioned, or any other acts relative to tbe insurrectionary States, or to persons or property therein, against tbe United States; and requires tbe defendants, in all such cases, to plead and allege tbe claimant’s alienage as a bar to such suit or action. Upon this general enacting clause of tbe section tlie following proviso is engrafted: “Tbat tins section shall not be construed so as to deprive aliens who are citizens or subjects of any government which accords to citizens of tbe United States tbe right to prosecute claims against such government in its courts, of tbe privilege of prosecuting claims against tbe United States in the Court of Claims, as now provided by law.”

Under this proviso it is argued, as a ground of demurrer, tbat tbe plea should have negatived tbe exception in tbe sav*64ing clause of tbe section. Tbe section, it will be observed, is not witbin tbe enacting clause of tbe act, but in tbe proviso; and in sucb a case tbe rule, as laid down in Dwarris’s Treatise on Statutes, *515,*is as follows: “There is a known distinction in tbe law between an exception in tbe purview of tbe act and a *proviso.*If there be an exception, in the enacting clause of tbe statute, it must be negatived in pleading; a separate proviso need not; and that, although it is found in tbe same section of tbe act, if it be not referred to and engrafted on tbe enacting clause. ‘The rule is,’ said Mr. Justice Asburst, in Spiers *v.*Parker, ‘ that any man who will bring an action for a penalty on an act of parliament, must show himself entitled under tbe enacting clause; but, if there be a subsequent exemption, that is matter of defence, and tbe other party must show it, to exempt himself from tbe penalty.’ Mr. Justice Bullersaid: ‘I do not know any case for a penalty on a statute, when there is an exception in tbe enacting clause, that tbe plaintiff must not show that tbe party whom be sues is not witbin it.’ So, in a criminal case, Lord Mansfield said*:*What comes by way of *proviso*in a statute must be insisted on for tbe purposes of defence by tbe party accused; but when exceptions are in the enacting part of tbe law, it must in the indictment charge that tbe indictment is not witbin any of them.’ ”

This doctrine of tbe English courts, although resting somewhat on technical grounds, is believed to be founded on solid reason, and in no substantial sense repugnant to the American doctrine, (see 1 Kent’s Com., 462-463, margin, and authors by him cited,) and when opposed to this case is conclusive of tbe only objection urged to tbe sufficiency of tbe plea. Tbe plea we think a good one, in substance and in form, and tbe demurrer must, therefore, be overruled and tbe petition dismissed.