#### JOHN STRAMBURG vs. HENRY HECKMAN.

A pica in abatement to the jurisdiction, averring that both the plaintiff and defendant arc foreigners, but not averring that the contract sued on was made abroad, is defective and cannot be sustained.

This Court will not take notice of the statement of facts, made by the Judge below, when no issue is joined in regard thereto.

Assumpsit for work and labor done, commenced by warrant before a Justice of the Peace, and upon appeal to the Superior Court, the defendant put in a plea in abatement, averring that “ the parties to said action are foreigners — that the said Henry Heckman was not at the time of the suing out of the original warrant in this case, is not now, and has not at any time been, a citizen of any of- the United States of America, nor a resident of any of the United States of America, but that he ivas, at the time of the suing out of the said original warrant and still is, a subject of Victoria, Queen of the United Kingdom of Great Britain and Ireland, a citizen of Nova Scotia, and a citizen of Yarmouth, Nova Sco-tia ; and that the said John Stramburg was not at the time of the suing out of the said original warrant in this case, and is not now, and hath not at any time been a citizen of any of the United States of America, or a resident of any of the United States of America, but that he was at the time of the suing out of-the said warrant in this case, and is now, and hath always been a subject of Victoria, Queen of the United Kingdom of Great Britain and Ireland, a citizen and resident of Bristol, England, and this action is properly cognizable in the Courts of Great Britain, and this the said defendant is ready to verify, wherefore he prays judgment,” &c. To this plea the plaintiff demurred.

His Honor, Judge Makly,

before whom the case was tried at New Hanover Superior Court, at its Special Term, in 1852, gave judgment overruling the demurrer, and sustaining the plea; from which the plaintiff prayed an appeal to the Supreme Court, and his Honor disallowing the same, on the ground that the plaintiff sued in forma pauperis, the case was brought up to this Court by certiorari at last June Term.

*251 D. Reid, in support-of the demurrer,

argued — 1. That the plea does not deny the defendant’s residence in the county of New Hanover, except arguendo, and is bad. (Mosely v. Hunter, 3 Ire. 2. .

2. The plea does not give a better writ. This Court cannot judicially know that there are Courts of common law jurisdiction in Nova Scotia.

3. Nor does it set out that the cause of action accrued beyond the jurisdiction of the United States. He further argued that foreigners may sue in our Courts on contracts made abroad. (Story’s Confl. Laws, ch. 14, secs. 538, 542, 554, — De la Vego v. Vianna, 1 Barn. & Adolph., 284.)

Strange, contra:

This case presents the questions — 1. Have our Courts jurisdiction, where the plaintiff and defendant are aliens, and the .contract was made abroad ? This question is raised by the plea and demurrer. (Gardner v. Thomas, 14 John. Rep., 134, — Johnson v. Dalton, 1 Cow. Rep., 543, — Boutlettv. Wyman, 14 John., 260, — Hallett v. Lamothe, 3 Mur., 279,— Martín v.-Hunter's lessee, 1 Wheat. 334.) He also cited Act of Congress, 1790, ch. 50, sec. 6.

2. As to the right of plaintiff to certiorari, he cited Estes v. Hairston; 1. Dev. 354, — Baker v. Halsted, ante 41.

Pearson, J.

We are confined by the record to the single question of the sufficiency of the plea in abatement. It is fatally defective, and does not present the question intended. There is no allegation that the contract was made in a foreign countiy. For aught that appears upon the face of the record, the contract was made m this State ; and the plea presents the question, Can one foreigner sue another in the Courts of this State, upon a contract for “ work and labor done,” entered into in this State? The Judge in the Court below sends up a statement of facts; but there was no issue joined upon the facts, and the statement of his Honor has no bearing on the case, as presented by the record.

This opinion will be certified, and the Court below will enter judgment respondeat ouster.

Per Curiam. Judgment reversed.