Weekly national intelligencer., 1857-06-27

the said bred Scott the jurisdiction Of this court and
exclusively within the jurisdiction Of the courts Of the State
Of Missouri for that to wit the said plaintiff Dred Scott is
citizen of the State of Missouri as alleged in his decs
ration because he is negro of African descent his ances
pure African blood and brought into this
country and sold slaves and this the said Sandford
is ready verify Wherefore he Judgment whether
this viii take further cognzance of the action
aforesaid"
The plaintiff demurred, and the judgment Of the cir
cult court was that the plea was insufficient.
cannot treat this plea general traverse OF the
citizenship alleged by the plaintiff Indeed, if it were
treated the plea clearly bad fort concludes with
verfcafion and the country as general ira
verse should And though this defect in plea in bar
be pointed out by special demurrer, II IS never
necessary to demur specially to plea in abatement
All matters, though of form only may be taken advan
age of upon general demurrer to such plea CMtty
on Pl, 1867
The truth is that though not drawn with the utmost
technical accuracy, it is special traverse of the plain
tiff allegation of citizenship and suitable and
proper mode of traverse under the circumstances. BY
reference to Mr. Stephens description of the uses Of
such traverse contained in his excellent analysis of
pleadings (Steph. PL, 176 il will be seen how pre-
cisey this plea meets of his descriptions No doubt
the defendant might have traversed, by common or
general traverse the plaintiffs allegation that he
citizen of the State of Missouri concluding to the
try The issue thus presented being Joined would have
involved matter of law, which the jury must have
passed. under the direction of the court But by ira
versing the plaintiff citizenship speciay-that is, aver
ring those facts which the defendant relied to show
that in point of law the plaintiff not citizen, and
basng the traverse those facts deduction there
from-opportunty given to do what done; that
is to present directly to the court, by demurrer, the
suhciency of those facts to negative in point of law,
the plaintiffs allegation of citizenship. This, then be-
ing special, and not general common traverse, the
rule is settled that the facts thus set out in the plea
the ground of the traverse must of themselves
constitute in poiRs of law, negative of the allegation
thus straversed.-(Sephsn Pl, 1873, Ch. Pl, 620
Aud upon demurrer to this plea the question which
whefh he hiatt ia a
of African descent whose of pure Afr
blood and brought into this country and sold
negro slaves may all be true and yet the plaintiff be
citizen of the State of Missouri within the meaning of
the Constitution and laws of the United States which
confer citizens of State the to citizens
of another State in the circuit courts Undoubtedly if
these facts taken together amount to allegation that
at the time of action brought the plaintiff himself
a slave the plea is sufficient 1t has been suggested that
the plea in legal effect does aver because if his
cestors sold slaves the presumption is they
tinued slaves and, if so, the presumption is the plain
tiff born slave; and if So the presump ption is he
continued to be slave to the time of action brought.
| cannot think such presumpions be resorted to
to help out defective averments In pleading especially
in pleading in abatement where the utmost certainty
and precision required. (Chitty Pl, 451) That
brought is substantive fact having necessary con-
nexon with the fact that his parents sold slaves
For they might have been sold after he born the
plaintiff himself, if once slave might have become
tors sold slaves is not equivalent, in point of
law, to averment that he slave. If it were he
could not confess and avoid the ayerment of the
slavery of his ancestors which would be monstrous and
if it be not equivalent in point of law, it cannot be
treated as amounting thereto when demurred to for q
demurrer confesses only those substantive facts which
well pleaded and not other distinct substan-
tive facts which might be inferred therefrom by jury
To treat ayerment that the plaintiffs ancestors
Africans, brought TO this country and sold slaves
amounting to averment the record that he
slave because may lay foundation for presuming
so, is hold that the facts actually alleged may be
treated intended evidence of another distinct fact
not alleged But it cardinal rule of pleading, laid
down in Dowmans case, 60 Rep, b. and in even ear
er authorities therein referred to- that evidence shall
never be pleaded for it only tends to prove matter
of fact and therefore the matter Of fact shall be
pleaded Or, the rule is sometimes stated pleadings
must not be argumentative. (Sephen Pleading, 1884,
and authorities cited by hm In Com Dig, Pleader E,
3, and Bac Abridgemen Pleas l. g. and Stephen on Pl,
many decisions under this rule collected In trover
for an indenture whereby granted manor, it is
plea that did not grant the manor for it docs not
swer the declaration except by argument. Yelv, 223
So IN trespass for taking and carrying away the plain
tiff goods the defendant pleaded that the plaintiff
had any goods. The said, this is infallibe
argument that the defendant is not guilty, but it is
plea" dyer, a 43.)
In the ejectment the defendant pleaded surrender of
a copyhold by the hand of Fosset, the steward The
plaintiff replied that Fosset not steward The court
held this ISSUE for it raversed the surrender only
argumehtatlveiy. lCro ELS, ZoU
In these cases. and many others reported in the books
the nferences from the facts stated irresistible
But the court held they did not when demurred to,
amount to such inferable facts In the at bar the
inference that the defendant slave the time of
action brought, if it be made at ALL from the
fact that his parents were slaves is certainly not
cessary inference This case, therefore, is like that Of
Digby V. Alexander, rs Bng., l16) In that the
defendant pleaded many facts strongly tending to show
that he was Earl of Stirling; but there
positive allegation that he at the time of action
brought and every fact averred might be true and
yet the defendant have been Earl of Stirling at the
time of action brought the plea held to be insult
cient.
lawful sezin of land is presumed to continue But
it, in the action of trespass qare ausu the defsndent
to plead that he lawfully seized of the locus
quo month before the time of the alleged trespass
should have doubt it would be bad plea. (See Mol
Ian Torrance Wheat, 537) SO if plea to the ju-
risdicon, instead of alleging that the plaintiff c
tzen of the State the defendant to alege
that the plaintiffs ancestors citizens of that State
think the plea could not be supported. My Judgment
would be- it is in this that if the defendant meant
to particular substantive fact existing at the
time of action brought he must do it directly and
pcitly and not by way Of inference from certain other
averments which quite consistent with the contrary
hypothesis Icannot therefore, plea contain
ing ayerment that the plaintiff himself slave at
the time of action brought; and the inquiry recurs
whether the facts that he is Of African descent and that
his parents slaves, necessarily inconsis
tent with his citizenship in the State of Missouri
within the meaning of the Constitution and laws of the
United States.
In Classics v. Baon (6 Pet 76l J the defendant was
described the record naturalized citizen of the
United States, residing in Louisiana. The court held
this equivalent TO averment that the defendant
citizen of Louisiana; becausea citizen Of the United
States residing in any State of the Union, is for pur
poses of jurisdiction citizen of that State. Now the
,Ia tn tha