Page:Federal Reporter, 1st Series, Volume 9.djvu/203

188 FEDERAL REPORTER. �at his usual place of abode, with G. C. Coble, an adult person;" and Charles A. Coble wa3 served personally. �The defendant John W. Scott filea a plea to the jurisdiction, in which he alleges that by reason of the faot that he, at the time, nor since the bringing of the suit, was not a citizen of the state of Ohio, this court bas no jurisdiction. �The defendant Charles A. Coble files his plea, in which he alleges — That this court haa no jurisdiction, because John W. Scott, before the bring- ing of this suit, had assigned all his property, including the lands in the deed, to him, for the beiieflt of his creditors; that he accepted the trust, and quali- fied; that the probate court of Athens county, having. exclusive jurisdiction of the trust created by said deed, ordered and adjudged, long before the bring- ing of this suit, that the defendant should proceed and sell the real estate embraced in the petition in this case, as well as all other, and couvert it into money, which order and judgment remain in full force, and biuding upon the defendant, and that he was, and now is, engaged in trying to sell said real estate; that the real estate is of greafcer value than the amouut of the com- plainant's claim ; that the property would be insuflieient to pay all the indebt- edness of said John W. Scott; that the real estate, at the commencement of this suit, was in the custody of the law and of the probate court, subject to its order, and this court had no jurisdiction thereof, or bf this suit, �The plaintiff bas set down these pleas for argument upon their suffi ciency. It is objected by the plaintiff — �That these pleas are insuflieient, for the reason that they do not conform to the requirements of rule 31 ; that a plea shall not be allowed to be filed uuless upon a certilicate of counsel ; that iu his opinion it is well founded, iu point of law, and supported by the affidavit of the defendant; that it is not inter- posed for delay, and that it is true in point of fact. Neithor of these pleas have the required certifleate of counsel or aftidavit of the defendant, and would therefore.be adjudged insufflcieiit; biit inasmuch as the court would permit them to be araended or supplemented in this respect, the plaiutili lias con- sented to their hearing as if they were accouipanied by the necessary certifl- eate and affidavit. �We will examine them separately — First, the plea of John W. Scott. The allegation of this plea is that at the time, nor any time since, the complainant exhibited his said bill in this honorable court, he was not a citizen of or within the state of Ohio, and therefore the court bas no jurisdiction. The first section of the judiciary act provides that no civil suit shall be brought before the circuit court of the United States against any person by any original process or proceed- ings in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving such process or eommenoing such proceeding. The bill alleges that the defendant is a citizen of Ohio, and the return of the marsbal is that he was ��� �