IN error to the Circuit Court of the United States for the Southern District of Mississippi. Cora A. Solocomb, Robert Richards, and Romanzo W. Montgomery, styling themselves citizens of of Louisiana, trading under the firm of Slocomb, Richards and Company, sued the President, Directors, and Company of the Commercial and Rail Road Bank of Vicksburg, styling them citizens of the state of Mississippi, living and resident in the Southern District thereof, being a banking company, incorporated by the Legislature of the state of Mississippi, located in the Southern District aforesaid. The suit was upon a certificate of deposite for three thousand five hundred and forty-one dollars and thirty-four cents. To the declaration of the plaintiffs, averring as above stated, the defendants put in the following plea: 'The said defendants by attorney come and say, that this Court ought not to have or take further cognisance of the action aforesaid, because they say that they are a corporation aggregate, and were at the time this suit was instituted, and yet so continue to be, and that the corporators, stockholders, or company, are composed of citizens of other and different states, to wit: That William M. Lambeth, and William E. Thompson, citizens of the state of Louisiana, are now, and were at the time this suit was instituted, stockholders and corporators therein; and this,' &c. The following affidavit was subjoined to the plea: 'James Roach, acting cashier for the Commercial and Rail Road Bank of Vicksburg, the defendants in the above case, makes oath, and says, the above plea is true in substance and fact.
The opinion of the court was delivered by: 'Signed, J. Roach.
'Sworn to, and subscribed before me, this 4th day of November, 1839.
'Signed, GEORGE W. MILLER, Deputy Clark.'
To this plea the plaintiffs demurred, and assigned the following special causes, to wit:
1. The said plea in abatement is not properly entitled to any term of this Court.
2. The affidavit in support of said plea is not sufficient, nor is the same properly attested.
3. The matters set forth in said plea are not sufficient to abate the plaintiffs' suit.
The demurrer was sustained and judgment rendered for the plaintiffs.
The defendants prosecuted this writ of error.
Mr. Sergeant for the plaintiffs in error, assigned as error in the judgment of the Circuit Court, the following points:
1. The alleged defect in the plea in abatement of the defendants below, and the want of a proper affidavit, and attestation of the plea, are not causes of demurrer.
2. If they are causes of demurrer, the plea was legal, and sufficient; and if not so, the judgment of the Circuit Court should have been to answer over.
3. The causes assigned as sufficient to abate the plaintiffs' suit, and which, being matter of general demurrer, did not require to be specially assigned, is not founded in law. On the contrary, the facts stated in the plea, and admitted by the demurrer, are sufficient in law to take away the jurisdiction of the Court, and entitled the defendants to judgment.
4. That if the plea, and affidavit were informal, still the facts stated in them, however, and whenever appearing, were fatal to the jurisdiction; which cannot be maintained by consent, ...