e description
therein specified. Hence, when a plaintiff sues in a court of the
United States, it is necessary that he should show, in his pleading,
that the suit he brings is within the jurisdiction of the court, and
that he is entitled to sue there. And if he omits to do this, and
should, by any oversight of the Circuit Court, obtain a judgment in
his favor, the judgment would be reversed in the appellate court for
want of jurisdiction in the court below. The jurisdiction would not be
presumed, as in the case of a common-law English or State court,
unless the contrary appeared. But the record, when it comes before the
appellate court, must show, affirmatively, that the inferior court had
authority, under the Constitution, to hear and determine the case. And
if the plaintiff claims a right to sue in a Circuit Court of the
United States, under that provision of the Constitution which gives
jurisdiction in controversies between citizens of different States, he
must distinctly aver in his pleading that they are citizens of
different States; and he cannot maintain his suit without showing that
fact in the pleadings.

This point was decided in the case of Bingham _v._ Cabot, (in 3 Dall.,
382,) and ever since adhered to by the court. And in Jackson _v._
Ashton, (8 Pet., 148,) it was held that the objection to which it was
open could not be waived by the opposite party, because consent of
parties could not give jurisdiction.

It is needless to accumulate cases on this subject. Those already
referred to, and the cases of Capron _v._ Van Noorden, (in 2 Cr.,
126,) and Montalet _v._ Murray, (4 Cr., 46,) are sufficient to show
the rule of which we have spoken. The case of Capron _v._ Van Noorden
strikingly illustrates the difference between a common-law court and a
court of the United States.

If, however, the fact of citizenship is averred in the declaration,
and the defendant does not deny it, and put it in issue by plea in
abatement, he cannot offer evidence at the trial to disprove it, and
consequently cannot avail himself of the objection in the appellate
court, unless the defect should be apparent in some other part of the
record. For if there is no plea in abatement, and the want of
jurisdiction does not appear in any other part of the transcript
brought up by the writ of error, the undisputed averment of
citizenship in the declaration must be taken in this court to be true.
In this case, the citizenship is averred, but