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Adams ». Roberts. 2 H.

1. The instrument in writing under the hand and seal of the party, must be attested and proved in the county or corporation court by wo witnesses; or

2. It must be acknowledged by the party in the court of the county where he or she resides.

Either of these modes is effectual. It is stated in the bill of exceptions, and is not contradicted, that the county of Alexandria was made on the 27th of February, 1801, being composed of what had been a part of the county of Fairfax, in Virginia, and that Summers owned 200 acres of woodland in Fairfax county, and was interested in another tract of land also in said county, upon which there was a house. But it does not appear how far within the line of the district the actual residence of Summers was thrown; whether the dividing line ran through his farm, separating the house from the great body of the land, or whether the land upon which his slaves resided was a separate estate, detached from his residence. But it sufficiently appears, that up to February, 1801, Summers had been accustomed to resort to the court of Fairfax county, for the transaction of business of every description, and that the jurisdiction under which he lived, then became changed, without its having been done by his removal from where he had lived before.

* The claimant, in support of her freedom, alleges, that [ * 495 ) Summers executed an instrument under his hand and seal on the 30th December, 1801, to which the names of Charles Little and Harrison Cleaveland are attached as witnesses. Upon the 18th of January, 1802, by a copy admitted to be a copy of that instrument, and not objected to when offered as evidence, it appears that Summers went into court in Fairfax county and acknowledged it to be a deed of manumission. The court ordered it to be recorded, and it was done. There is nothing in the record to show whether or not the two witnesses were present with him in court when he made this acknowledgment. If they were, the case would clearly fall within the first mode pointed out by the statute, being an instrument in writing under the hand and seal of the party, attested and proved in the county court by two witnesses. It is not said in what court the attestation and proof must be made, in the case of a non-resident owning slaves resident in Virginia, but we presume that in such a case the attestation and proof ought to be made in the county court where the slave resides.

It is not necessary, however, to decide that question in this case, because the proof, to substantiate and give validity to the instrument, does not exist; but we have recited the preceding facts because they are evidence in the case, and are connected with the paper purport

Adams v. Roberts. 2 H.

be so.

ing to be a copy of a deed of manumission, which was introduced to sustain the claimant's demand for freedom. This, then, is the copy of an original paper, not denied to be such by the plaintiffs in error, and the question occurring is, how ought it to have been considered in the court below as a part of the evidence in the cause, with reference to the instructions asked ? In the first instruction, the court is asked to put the case, that the deed of emancipation so as aforesaid made, executed, and acknowledged and recorded, did not entitle the petitioner to freedom, under the statute in such cases made and provided by an act, entitled “An act reducing into one the several acts concerning slaves, free negroes, and mulattoes,” passed December 17, 1792.

The paper in evidence was the copy of an original, the execution of which by the grantor was not denied. It was received as evidence upon proof of the loss of the original. It was forty years old. No proof of its execution was necessary, its antiquity proved it. But, it is said, the proof and attestation before the court in Virginia, to give it validity, was wanting, and that it appeared to be so upon the face of the paper given in evidence. That might or might not

But it was a fact in controversy between the par[ *496 ] ties, as much so as * any other fact in the case, and the

court could not be asked to instruct the jury upon their belief of another single fact, namely, the residence of Simon Summers in the county of Alexandria, that the party was not entitled to freedom under the statute of Virginia. The instruction as asked, excludes all the other evidence, and puts the legal issue proposed on it upon a single fact. It excludes, also, all presumptions which the jury might make from the other evidence in connection with the antiquity of the paper which was before them. The court did not err in refusing to give the first instruction.

The second instruction asked for by the defendants in the court below was, that the testimony, although believed by the jury, was not sufficient in law to entitle the petitioner to her freedom.

If the jury believed all the evidence offered, the case would have stood thus: Susan, the mother of Julia, was to become free on the 1st of January, 1814. If they believed that fact, and also believed that Julia was born after that day, she was the child of a free woman, and of course free herself. The trial took place at May term, 1842. Evidence was offered to show that Julia was then about twentyeight years old. If she was twenty-eight years of age at any period between the 1st of January and May, 1812, of course she was born after her mother had become free. The instruction asked the court to deprive the jury of the power of saying she was born in that Louisville Railroad Company v. Letson. 2 H. interval. This was a fact especially proper for the consideration of the jury, and the court could not have given the instruction asked by the defendant, that the testimony was not sufficient in law to entitle the petitioner to her freedom, without assuming the fact that Julia was not born in the interval already mentioned. We think the court did not err in refusing the instruction.

The judgment of the court below is affirmed.

THE LOUISVILLE, CINCINNATI, AND CHARLESTON RAILROAD COMPANY,

Plaintiffs in Error, v. THOMAS W. LETSON, Defendant.

2 H. 497.

A railroad corporation, chartered by the State of South Carolina, to build and manage a

railroad in that State, may be sued by a citizen of New York, in the circuit court of the United States for the district of South Carolina, although some of the owners of shares of the capital stock are not citizens of South Carolina, and the State of South Carolina owned some of the shares.

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ERROR to the circuit court of the United States for the district of South Carolina, in an action of covenant broken by Letson, a citizen of New York. The defendant pleaded to the jurisdiction of the court as follows:

“ And the said The Louisville, Cincinnati, and Charleston Railroad Company come and say, that this court ought not to have or take further cognizance of the action aforesaid, because they say that the said The Louisville, Cincinnati, and Charleston Railroad Company is not a corporation whose members are citizens of South Carolina, but that some of the members of the said corporation are citizens of South Carolina, and some of them, namely, John Rutherford and Charles Baring, are, and were at the time of commencing the said * action, citizens of North Carolina; and the State [ * 498 ) of South Carolina is, and was at the time of commencing the said action, a member of the said corporation, and the Bank of Charleston, South Carolina, is also, and was at the time of commencing the said action, a member of the said corporation, which said The Bank of Charleston, South Carolina, is a corporation, some of whose members, namely, Thomas Parish and Edmund Lafau, are, and were at the time of commencing the said action, citizens of New York. And The Charleston Insurance and Trust Company is now, and was at the time of commencing the said action, a member of the said Louisville, Cincinnati, and Charleston Railroad Company; which said The Charleston Insurance and Trust Company, is a corporation, some of whose members, namely, Samuel D. Dickson, Henry

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VOL. XV.

Louisville Railroad Company v. Letson. 2 H.

R. Dickson, Henry Parish, and Daniel Parish, are now, and were at the time of commencing the said action, citizens of the State of New York.

“ And this the said Louisville, Cincinnati, and Charleston Railroad Company are ready to verify. Wherefore they pray judgment whether this court can or will take further cognizance of the action aforesaid."

To this plea there was a general demurrer, which, upon argument, was sustained by the court.

The railroad company then pleaded the general issue, and the cause went to trial. The jury found a verdict for the plaintiff, and this writ of error was brought to review the opinion of the court upon the demurrer.

Mazyck, for the plaintiffs in error.

Pettigru, Lesesne, and Legarè, (attorney-general,) for the defend. ant in error.

[ * 550 ] WAYNE, J., delivered the opinion of the court.

The jurisdiction of the court is denied in this case upon the grounds that two members of the corporation sued are citizens of North Carolina ; that the State of South Carolina is also a member, and that two other corporations in South Carolina are members, having in them members who are citizens of the same State with the defendant in error.

The objection, that the State of South Carolina is a member, cannot be sustained. Cases have been already decided by this court which overrule it. The doctrine is, if the State be not necessarily a defendant, though its interest may be affected by the decision, the courts of the United States are bound to exercise jurisdiction. United

States v. Peters, 5 Cranch, 115. In the case of The Bank [ * 551 ] of the United States v. Planters' Bank of Georgia, this

court ruled “that when a government becomes a partner in a trading concern, it divests itself, so far as it concerns the transactions of that company, of its sovereign character, and takes that of a private citizen. Instead of communicating to the company its privileges and its prerogatives, it descends to a level with those with whom it associates itself, and takes the character which belongs to its associates and to the business which is to be transacted. Thus, many States of this Union, who have an interest in banks, are not suable even in their own courts, yet they never exempt the corporation from being sued. The State of Georgia, by giving to the Louisville Railroad Company v. Letson. 2 H. bank the capacity to sue and be sued, voluntarily strips itself of its sovereign character, so far as respects the transactions of the bank, and waives all the privileges of that character.” 9 Wheat. 907. South Carolina stands in the same attitude in the case before us that Georgia did in the case in 9 Wheat. It is no objection, then, to the jurisdiction of the court, on account of the averment in the plea, that the State of South Carolina is a member of The Louisville, Cincinnati, and Charleston Railroad Company. The true principle is, that the jurisdiction of the circuit courts of the United States cannot be decreed or taken away on account of a State having an interest in a suit, unless the State is a party on the record. Osborne and The Bank of the United States, 9 Wheat. 852. This must be the rule under our system, whether the jurisdiction of the court is denied on account of any interest which a State may have in the subject-matter of the suit, or when it is alleged that jurisdiction does not exist on account of the character of the parties.

We will here consider that averment in the plea which alleges that the court has not jurisdiction, “ because The Louisville, Cincinnati, and Charleston Railroad Company is not a corporation whose members are citizens of South Carolina, but that some of the members of the said corporation are citizens of South Carolina, and some of them, namely, John Rutherford and Charles Baring, are and were, at the time of commencing the said action, citizens of North Carolina.”

The objection is equivalent to this proposition, that a corporation in a State cannot be sued in the circuit courts of the United States, by a citizen of another State, unless all the members of the corporation are citizens of the State in which the suit is brought.

The suit, in this instance, is brought by a citizen of New York in the circuit court of the United States for the district of South Carolina, which is the locality of the corporation sued.

Jurisdiction is decreed, because it is said it is only given [ * 552 ] when 6 the suit is between a citizen of the State where the suit is brought, and a citizen of another State.”1 And it is further said that the present is not such a suit, because two of the corporators are citizens of a third State.”

The point in this form has never before been under the consideration of this court. We are not aware that it ever occurred in either of the circuits, until it was made in this case. It has not then been directly ruled in any case. Our inquiry now is, what is the law upon the proposition raised by the plea.

Our first remark is, that the jurisdiction is not necessarily excluded by the terms, when “the suit is between a citizen of the State where

11 Stats. at Large, 78.

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