Page:Federal Reporter, 1st Series, Volume 5.djvu/24

 ^-12 FEDEfiAl/ BEi-ÔBTEil �The àns^frer of the defendant denies that the plaintiff is a citizen of Switzerland and an alien, and avera that she is now, and long since, and prior to January 16, 1878, has been, a citizen of the United States and of Oregon. �By the stipulation of the parties the cause was suhmitted to the court for trial upon the issue made by this plea and the admissions in such stipulation, which are: (1) That the plaintiff is a native and citizen of the republic of Switzer- land; (2) that D. G. Leonard was a citizen by birth of the United States, and at his death, and for 20 years prior thereto, was a citizen of Oregon ; (3) that the plaintiff was married to said Leonard in Oregon on July 19, 1875, and lived with him therein, as his wife, until his death, and still resides here. �The' liiatter contained in the answer is doubtless ihtended as a plea to the jurisdiction, but no such or other application is therein madeof it. It does not commence with the usual allegation that the court 'Ought not, on account of the faot Btated in the plea, to take cognizance of the action, nor con- çludë 'with the proper prayer — si curia cogiiosccre velit — iWhetjie;r:the.court: will take cognizance of the action, (3 Chit. 804,) but with a prayer for a judgment for costs and dis- bursements, which is superfluous and improper in any action, as they are given or withheld as an incident of the action, and according to the final judgment in the case. �One of the admissions in the stipulation is that the plaintiff is a native and citizen of Switzerland. If this be taken as literally true, then there is no doubt but that this court has jurisdiction of the action; but, taken in connection with the rest of the stipulation and the argument of counsel, Lsuppose it may be regarded as an inadvertence, and as intended only as an admission that she was such citizen by birth and until the time of her marriage. �These preliminary matters being disposed of, the case turns upon the decision of the question, is the plaintiff a citi- zen of the United States? and this depends upon the con- struction to be given to section 2 of the act of February 10, 1855, (19 St.e04; section 1904, Rev. St.,) which reads in the ����