[Conolly and others vs. Taylor and others.]

For the defendants in error it was contended that the circuit court of the Kentucky district had no jurisdiction. The bill of complaint, which is the foundation and commencement of the suit in equity, states Samuel F. Mifflin, one of the complainants, to be a citizen of Pennsylvania, and William Lytle, one of the defendants, to be a citizen of Ohio. William Lytle pleaded to the jurisdiction, and thus saved his right to object, even if he had had power to waive it, which he had not. Consent cannot give jurisdiction. The objection is not founded upon the provision, that a citizen shall not be sued in the courts of the United States, except in the state where he resides, or is found at the time of serving the process. That is a privilege which he may waive by appearance. It rests upon that part of the act of congress, (Act of 1789, sec. 11.) which expressly limits the jurisdiction, (and so far as it rests upon the character of the parties), to suits between citizens of different states, one of them being "a citizen of the state where the suit is brought." There is no doubt that the jurisdiction, under the constitution, might have been more extensive. The terms of the constitution only require that the parties should be citizens of different states. But the uniform construction of this grant of power has been, that it is to be exercised by the judiciary only, to the extent which congress may authorise.

It is perfectly clear, upon this statement, that the circuit court had no jurisdiction between Mifflin and Lytle. Section 11, of the act of the 24th of September 1789. The Court is bound to notice the question of jurisdiction, whenever it may occur, and however proposed. 2 Dall. 368. The plaintiff may assign as error, the want of jurisdiction, though the tribunal of the United States were resorted to by himself. The Court must see that it has jurisdiction.

The jurisdiction must appear on the record affirmatively. Every thing must be alleged that is necessary to give jurisdiction. 3 Dall. 382. 4 Dall. S. 1 Cranch, 343. 2 Cranch, 186. 5 Cranch, 185. 6 Wheat. 450.

This would be clear, if Mifflin and Lytle were the sole parties. Does their joinder with others make any difference? The answer has long since been given. The plaintiffs and

[Conolly and others vs. Taylor and others.]

defendants must all be competent to sue and be sued. Strawbridge vs. Curtis, 3 Cranch, 267. Hope Insurance Company vs. Boardman, 5 Cranch, 57. Bank of the United States vs. Deveraux, 5 Cranch, 61.

If the plaintiffs be not all competent, it is immaterial whether the joinder is from necessity or voluntary. Corporation of New Orleans vs. Winter, 1 Wheat. 91. 94. .Ward vs. Arredondo, 1 Paine, 410. The rule is the same as to defendants.

Some exceptions have been made, out of the generality of the proposition; but none that in its terms or spirit can comprehend the present case. In Cameron vs. M'Roberts, 3 Wheat. 591, it was decided, that if a distinct interest vested in one of the parties defendant, he being the one within the jurisdiction, so that substantial justice could be done, so far as he was concerned, without affecting the other defendants, the jurisdiction of the Court might be exercised as to him alone. That is, to apply it to the present case, if Lytle were within the jurisdiction, the case might proceed against him alone; for here, Lytle was the sole party in interest. It so appears by the bill of complaint, the title having come to be entirely vested in him. But he who was thus the only material party, was the very party who was out of the jurisdiction, and not amenable to the Court.

So, it is very true, that the joinder of a mere formal party defendant, does not take away the jurisdiction. Wormley vs. Wormley, 8 Wheat. 421. 451. The criterion in such cases is whether a decree is sought against him. Ward vs. Arredondo, 1 Paine, 410. If he be a material party, he must be brought in, even though the jurisdiction would thereby be ousted. Harrison vs. Rowan, Circuit Court, New Jersey District. But Lytle was not a mere formal party, he was an indispensable party, without whom no decree could be made.

So, if improper persons be made parties by mistake, who are not subject to the jurisdiction. Carneal vs. Banks, 10 Wheat. 187, 188. But here there was no such mistake in joining improper persons.

There is no case, therefore, where the decision has been contrary to what is now contended for. The opinion that

[Conolly and others vs. Taylor and others.]

in a suit at common law in Pennsylvania, where non est inventus is returned as to one who is not subject to the jurisdiction, (2 Wash. C. C. Rep. 505. 1 Peters's Rep. 431, note) the proceedings may go on against the others; has no application.

It is true, that in this case, the court in 1821, (three years after suit brought) permitted the complainants to amend their bill, by striking out Mr Mifflin as complainant, and making him a defendant. But this was itself an exercise of judicial authority, which could not rightfully take place, but in a case over which the court had previously a power. The court could not make the amendment, unless it first had jurisdiction. The time of suit brought, is the period to which the question of jurisdiction applies. Mollan vs. Torrance, 9 Wheat. 537. It cannot afterwards be either vested or divested.

Mr Chief Justice MARSHALL delivered the opinion of the Court.

As an objection was made to the jurisdiction of the Court in this case, it may be proper, in order to prevent a possible misunderstanding of the principle on which jurisdiction is sustained, briefly to state it.

The bill is filed in the court of the United States, sitting in Kentucky, by aliens and by a citizen of Pennsylvania. The defendants are citizens of Kentucky, except one who is a citizen of Ohio, on whom process was served in Ohio. The jurisdiction of the court cannot be questioned, so far as respects the alien plaintiffs. As between the citizen of Pennsylvania and of Ohio, neither of them being a citizen of the state in which the suit was brought, the court could exercise no jurisdiction. Had the cause come on for a hearing in this state of parties, a decree could not have been made in it for the want of jurisdiction. The name of the citizen plaintiff, however; was struck out of the bill before the cause was brought before the court; and the question is, whether the original defect was cured by this circumstance; whether the court, having jurisdiction over all the parties then in the cause, could make a decree.

The counsel for the defendants maintain the negative of

[Conolly and others vs. Taylor and others.]

this question. They contend that jurisdiction depends on the state of the parties at the commencement of the suit; and that no subsequent change can give or take it away. They say, that if an alien becomes a citizen pending the suit, the jurisdiction which was once vested is not divested by this circumstance. So, if a citizen sue a citizen of the same state, he cannot give jurisdiction by removing himself, and becoming a citizen of a different state.

This is true, but the court does not understand the principle to be applicable to the case at bar. Where there is no change of party, a jurisdiction depending on the condi-. tion of the party is governed by that condition, as it was at the commencement of the suit. The court in the first case had complete original jurisdiction; in the last it had no jurisdiction either in form or substance. But if an alien should sue a citizen, and should omit to state the character of the parties in the bill: though the court could not exercise its jurisdiction while this defect in the bill remained; yet it might, as is every day's practice, be corrected at any time before the hearing, and the court would not hesitate to decree in the cause.

So in this case. The substantial parties plaintiffs, those for whose benefit the decree is sought, are aliens; and the court has original jurisdiction between them and all the defendants. But they prevented the exercise of this jurisdiction, by uniting with themselves a person between whom and one of the defendants the court cannot take jurisdiction. Strike out his name as a complainant, and the impediment is removed to the exercise of that original jurisdiction which the court possessed, between the alien plaintiffs and all the citizen defendants. We can perceive no objection, founded in convenience or in law, to this course.

Upon examining the record, the judges are divided in opinion on the question, whether the defendants, who are purchasers, have taken the lands charged with the equity which was attached to it, while in possession of Campbell and his heirs; or are to be considered as purchasers without notice. It would be useless to state the arguments and facts in support of each opinion. The decree is affirmed by a divided Court.

CHARLES A. BEATTY AND JOHN T. RITCHIE, APPELLANTS v8. DANIEL KURTZ AND OTHERS, TRUSTEES OF THE GERMAN LUTHERAN CHURCH OF GEORGETOWN, APPELLEES.

A lot of ground had, in the original plan of an addition to Georgetown, been marked "for the Lutheran church," and by the German Lutherans of the place, had been used as a place of burial from the dedication, and who had erected a school house on it, but no church; exercising acts of protection and ownership over it at some periods, by committees appointed by the German Lutherans; the original owner acquiescing in the same. This may bẹ considered as a dedication of the lot to public and pious uses: and, although the German Lutherans were not incorporated, nor were there any persons who as trustees could hold the property, the appropriation was also valid under the bill of rights of Maryland. The bill of rights, to this extent at least, recognizes the doctrines of the statute of Elizabeth for charitable uses; under which it is well known, that such uses would be upheld, although there was no specific grantee or trustee. This might at all times have been enforced as a charitable and pious use, through the intervention of the government, as parens patriæ, by its attorney general or other law officer. It was originally consecrated for a religious purpose. It has become a depository of the dead; and it cannot now be resumed by the heirs of the donor. [584]

If the complainants in the circuit court were proved to be the regularly appointed committee of a voluntary society of Lutherans in actual possession of the premises, and acting by their direction to prevent a disturbance of that possession; under the circumstances of this case, there does not appear to be a serious objection to their right to maintain a suit for a perpetual injunction against the heirs of the donor, who sought to regain the property, and to disturb their possession. [584]

The only difficulty which presents itself upon the question, whether the com plainants in the circuit court have shown, in themselves, sufficient authority to maintain their suit, is, that it is not evidenced by any formal vote or writing. If it were necessary to decide the case on this point, under all the circumstances, it might be fairly presumed. But this is not necessary; because this is one of those cases in which certain persons belonging to a voluntary society, and having a common interest, may sue in behalf of themselves and others, having the like interests, as part of the same society, for purposes common to all, and beneficial to all. [585]

APPEAL from the circuit court of the county of Washington.

The appellees filed their bill in the circuit court against Charles A. Beatty and John T. Ritchie, which states, in substance, that the late colonel Charles Beatty and George Frazier Hawkins, in the year. 1769, laid out on lands belong