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James Erwin, Plaintiff in Error, v. Alfred J. Lowry, Curator of Alexander McNeill, Deceased U.S. 172 (1849)

handle is hein.slavery/ussccases0279 and id is 1 raw text is: 172 SUPREME COURT. Erwin . Lowry. take cognizance of the subject-matter,-whose peculiar province and duty it was to iake cognizance of it. The exception, at the utmost, resolves itself into matter of form, which the parties were competent to waive, and which they did waive; for it is expressly stated upon the -record, that. the removal of the cause from the Court of Probate into the District Court was .by the consent of all concerned. It cannot be pretended that the forms of pleading may not be dispensed with by suitors; as it is certain that the benefit of matters both of substance and form may be lost by mere neglect or omission, where no inten- tion of the renunciation of either is apparent or ever existed. We must conclude that the District Court had -rightfully juris- diction of the cause removed into it from the Probate Court; that its judgment is and must be binding upon the parties to it, until it shall be annulled or reversed by a competent authority. The parties to that judgment, the subj6ct-matter thereof, and embraced within the proceedings .on which it was founded, being identical with those comprised in the bill in the Circuit Court of the United States for the Ninth Circuit, now under review, the judgment was well pleaded in bar of the claims set up by the bill, and the decree of the Circuit Court sustaining this plea we hold to be correct, and the same is therefore here- by affirmed. Order. This cause came on to be heard on the transcript of the rec- ord from the Circuit Court .of the United States for the District - of Louisiana, and was argued by counsel. On consideration whereof, it is now here ordered and decreed by this court, that the decree of the said Circuit Court in this cause be and the same is hereby affirmed, with costs. JArEs ERwIN, PLAINTIFF IN ERROR, V. ALFRED J. LowRy, CuRATOR or ALEXANDER McNEILL, DECEASED. Where a petition fur the seizure and sale of the mortgaged property of a de- ceased person was filed, in the Circuit Court of the United States for Louisiana, against the executor of that deceased person, which petition* alleged the plaintiff to be a citizen of Tennessee, and the defendant to be a citizen of Louisiana, and the proceedings went on to a sale without any objection to the jurisdiction of the courebeing made by the executor upon the ground of residence of parties, it is too late for a curator, appointed in the place of the executor, to raise the objection in a State court against a purchaser at the sale, and attempt to prove tli the Circuit Court had no jurisdiction over the case, because the executor was not a citizen of Louisiana. Evidence dehors the record cannot be introduced to dis- prove it Where a lien existed on property by a special mortgage before.the debtor's death, aid

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