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This

such order as to costs as shall be just, but the | if the necessary citizenship of the parties c
order of the Circuit Court, dismissing or re- isted. This opened wide the door for fraud
manding said cause to the State Court, shall be upon the jurisdiction of the court by collusiv
reviewable by the Supreme Court on writ of transfers, so as to make colorable parties an
errror or appeal, as the case may be."
create cases cognizable by the Courts of th
United States. To protect the courts as wel
as parties against such frauds upon their juris
diction, it was made the duty of a court, at an
time when it satisfactorily appeared that a sui
did not "really and substantially involve a dis
pute or controversy" properly within its juris
diction, or that the parties "had been improp
erly or collusively made or joined fo
the purpose of creating a case cognizable" un
der that Act, "to proceed no further therein,'
but to dismiss the suit or remand it to the Stat
Court from which it had been removed.
as was said in Williams v. Nottawa, 104 U. S.
211 [bk. 26, L. ed. 720], "imposed the duty or
the court, on its own motion, without waiting
for the parties, to stop all further proceeding
and dismiss the suit the moment a fraud on it
jurisdiction was discovered." The old rule
established by the decisions, which required al
objections to the citizenship of the parties, un
less shown on the face of the record to be taken
by plea in abatement before pleading to the
merits, was changed, and the courts were giver
full authority to protect themselves against the
false pretenses of apparent parties. This is a
salutary provision which ought not to be neg
lected. It was intended to promote the end
of justice, and is equivalent to an express enact
ment by Congress that the Circuit Courts shal
not have jurisdiction of suits which do no
really and substantially involve a dispute o
controversy of which they have cognizance
nor of suits in which the parties have been im
properly or collusively made or joined for the
purpose of creating a case cognizable under the
Act It does not, any more than did the Act
of 1789, prevent the courts from taking juris
diction of suits by an assignee when the assign
ment is not fictitious, and actually conveys al
the interest of the assignor in the thing assigned
so that the suit when begun involves really and
substantially a dispute or controversy in favor
of the assignee for himself and on his own ac
count against the defendant; but it does in
positive language provide that, if the assign
ment is collusive and for the purpose of enabling
the assignee to sue in the Courts of the United
States for the benefit of the assignor, when the
assignor himself could not bring the action, the
court shall not proceed in the case. In this re
spect it goes further than the rulings of the
courts under the Act of 1789. Under its pro
visions the holders of promissory notes or of
foreign or domestic bills of exchange, who are
citizens of a State in which the decisions of the
courts have been adverse to their interests, can-
not by collusive transfers to citizens of other
States create a case apparently cognizable in
the Courts of the United States, and have it
prosecuted by their assignees in those tribunals
for their benefit, in the hope of securing an ad-
judication in that jurisdiction more favorable
to their interests. The Courts of the United
States were not created under the Constitution
for any such purpose. Except in certain speci-
fied cases they have no jurisdiction of contro
versies between citizens of the same State.

Under the Act of 1789, the jurisdiction of the Courts of the United States, in suits by assignees of choses in action, was confined within narrow limits, and there was comparatively little danger of collusion to create a case of that character cognizable by those courts, because, if the owner of the claim could sue in his own name, there would ordinarily be no motive for transferring it to another to bring the action. In that Act promissory notes and inland bills of exchange, the form of negotiable securities most used in the transaction of ordinary business by citizens of the United States, were included in the prohibition of suits by assignees. The subject of colorable transfers to create a case for the jurisdiction of the Courts of the United States was presented for the most part in suits for the recovery of real property, when a conveyance had been made by a citizen of the State in which the suit must be brought to a citizen of another State. At a very early day it was held in this class of cases that the citizenship of the parties could not be put in issue on the merits, but that it must be brought forward at an earlier stage in the proceedings by a plea in abatement, in the nature of a plea to the jurisdiction, and that a plea to the merits was a waiver of such a plea to the jurisdiction. De Wolf v. Rabaud, 1 Pet., 498; Evans v. Gee, 11 Pet., 83; Sims v. Hundly, 6 How., 1; Smith v. Kernochen, 7 How., 216; Jones v. League, 18 How., 81 [59 U. S., bk. 15, L. ed. 264]; De Sobry v. Nicholson, 3 Wall., 423 [70 U. S., bk. 18, L. ed. 264]. And upon the question of transfer it was uniformly held that, if the transaction was real and actually conveyed to the assignee or grantee all the title and interest of the assignor or grantor in the thing assigned or granted, it was a matter of no importance that the assignee or the grantee could sue in the Courts of the United States when his assignor or grantor could not. A suit by such an assignee or grantee would present, in reality, a controversy between the plaintiff on the record and the defendants. McDonald v. Smalley, 1 Pet., 620; Smith v. Kernochen, supra; Barney v. Baltimore, 6 Wall., 288 [73 U. S., bk. 18, L. ed. 827]. But it was equally well settled that if the transfer was fictitious, the assignor or grantor continuing to be the real party in interest, and the plaintiff on record but a nominal or colorable party, his name being used only for the purpose of jurisdiction, the suit would be essentially a controversy between the assignor or grantor and the defendant, notwithstanding the formal assignment or conveyance, and that the jurisdiction of the court would be determined by their citizenship rather than that of the nominal plaintiff. Maxwell v. Levy, 2 Dall., 381; S. C. 4 Dall., 330, decided by Mr. Justice Iredell and Peters, J., in the Pennsylvania Circuit in 1797. Smith v. Kernochen, supra; Barney v. Baltimore, supra.

Such was the condition of the law when the Act of 1875 was passed, which allowed suits to be brought by the assignees of promissory notes negotiable by the law merchant, as well as of foreign and domestic bills of exchange,

We are clearly of opinion that this case falls

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the coupons now in suit were

- al bought as early as 1871 or ers of the State of Maine, who held bends themselves when this suit Their purchases were made while ang in the courts of the State to y of the bonds. On the 27th of the highest court of the State 1 that the bonds were inoperafor want of constitutional power orporation to issue them. Almost er's decision these coupons, to $1.922, were collected from vabonds, all residents of the Vilgo and citizens of Maine, and rate from the bonds, to the a citizen of Massachusetts, ment by which the plaintiff t of the holders of the coupons ble promissory note for $500, years from date, with interest, as a further consideration for said

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NATHAN FLETCHER AND JOHN D.
BICKNELL.

(See S. C. Reporter's ed., 127, 128.)

Judgments when final.

A judgment is final for purposes of a writ of error
to this court, which terminates the litigation be
tween the parties on the merits of the case, so that
if there should be an affirmance here, the court be-
low would have nothing to do but to execute the
judgment it had already rendered.
[Nos. 372, 373.]
Submitted Mar. 23, 1885. Decided Mar. 30,1885.

ERROR to the Supreme Court of the State

of California.

The case is sufficiently stated by the court.
On motion to dismiss.

Brainerd, for defendants in error, in support
Messrs. J. K. Redington and M. D.

of motions.

f he succeeded in collecting the thereof he would pay the agent, they was got from the corporacent of the net amount collected This suit, begun July 1, 1880, if the plaintiff, is the result of that It is a suit for the benefit of the bonds, They are to receive from half of the net proceeds of the Lave created by their transfer of the red together for that purpose. rown in reality, though they that the plaintiff may retain one the collects for the use of his name in collecting. It is true the aced a purchase in the papers *****d, and that the plaintiff gave K but the time for payment was * Tears, when it was, no doubt, salt of the suit would be known. was paid, and as the note was not That judgment is final for the purposes of a clear the parties intended to writ of error to this court, which terminates of the whole matter in their the litigation between the parties on the merits that if the plaintiff failed to re- of the case, so that, if there should be an afSy be could be released from his firmance here, the court below would have In the language of Mr. Justice nothing to do but to execute the judgment it the court in Detroit v. Dean, had already rendered. Bostwick v. Brinkerhoff, 4k 27 L. ed. 302], applied to 106 U. S. 3 [bk. 27, L. ed. 73], and the numer, the transfer of the coupons ous cases there cited. The judgments in these 4 trivance, a pretense, the reLove arrangement to create" in ended, and the rights of the parties on the mercases are of that character. The litigation is tntiff “a fictitious ground of its have been fully determined. Nothing re"on" so as to get a re-examina-mains to be done but to require the inferior sition of the question decided court to perform the ministerial act of entering Ders of the coupons by the the judgments in that court which have been tunal of the State. Harres ordered. This is but carrying the judgment of 4U. S., 459 [bk. 26, L. ed. 832], the Supreme Court, which has been rendered, Keras, 106 U. S., 586 [bk. 27. L. into execution. Nothing is left to the judicial Tipv. Stebbins, 109 U. discretion of the court below. The cases relied Led. 956). on in support of the motions to dismiss were all judgments or decrees of reversal, with leave for further proceedings in the inferior court. Such judgments are not final, because something yet remains to be done to complete the litigation. The motion in each of the cases is overruled. True copy. Test:

Mr. W. J. Johnston, for plaintiff in error,
contra.

ion of the court:
Mr. Chief Justice Waite delivered the opin-

These motions are made on the ground that
the judgments for the review of which the writs
of error were sued out are not final judgments.
The judgment in each case is that the judg
ment of the state district court "Be, and the
same is hereby reversed with costs, with direc-
tions to the Superior Court of Los Angeles
County to enter judgment upon the findings for
the plaintiff as prayed for in his complaint."

y in answer to the first that the plaintiff cannot in in the Circuit Court upon Jete de inred upon.

ment of the Circuit Court is conse-
ind the cause remanded, with
is the suit for want of juris-

- in eas muihvat prejudice.

James H. McKenney, Clerk, Sup. Court, U. S.
NOTE.-Appeal and error; what is a final decree
or judgment for purpose of. See Gibbons v. Ogden,
Kenney, Clerk, Sup. Court, U. S. 19 U. S. (6 Wheat.), 448, bk. 5, 302, note.

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DETROIT CITY RAILWAY COMPANY, | alteration, amendment or repeal shall not oper
Piff. in Err.,

0.

JACOB GUTHARD.

(See 8. C., Reporter's ed., 183-187.)

ate as an alteration or amendment of the corpo rate rights of companies formed under it, un less specially named in the Act so altering o amending this Act, nor shall the dissolution o any such company take away or impair any remedy given for or against said corporation

- Jurisdiction-review of the judgments of state its stockholders or officers or any liability courts-federal question.

1. The jurisdiction of this court for the review of a judgment of the highest court of a State depends on the decision by that court, of one or more of the questions specified in § 709, R. S., and in the way

there mentioned.

2. To give this court jurisdiction it must appear affirmatively on the face of the record, not only that a federal question was raised and presented to the highest court of the State for decision, but that it was decided, or that its decision was necessary to the judgment or decree rendered in the case.

[No. 923.]

Submitted Mar. 2, 1885. Decided Mar. 30,1885.

which shall have been previously incurred." Section 22 of this Act was repealed March 13, 1882. In the repealing Act the Detroit City Railway Company was not specially named. law was enacted. This law provided that al On the 14th of March, 1882, a general tax property within the jurisdiction of the State no expressly exempt should be subject to taxation and that all corporate property, except wher some other provision is made by law, should be assessed to the corporation as to a natural per son in the name of the corporation.

Under the authority of this last law, the City of Detroit assessed a tax on the property of the

ERROR to the Supreme Court of the State Railway Company, and Guthard, the receive

IN Michigan.

On motion to dismiss.

The history and facts of the case appear in the opinion of the court. See, also, 51 Mich.,

180.

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Mr. Chief Justice Waite delivered the opinion of the court:

This is a motion to dismiss a writ of error to the Supreme Court of Michigan on the ground that the record does not show that any federal question is involved. The case is this:

The Detroit City Railway Company was organized in May, 1863, under a general law of Michigan to provide for the construction of train railways, passed February 13, 1855, to operate a street railway in Detroit. Article 15, § 1, of the Constitution of the State, which went into effect January 1, 1851, is as follows: "Corporations may be formed under general laws, but shall not be created by special Act, except for municipal purposes. All laws passed pursuant to this section may be amended, altered or repealed."

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Sections 22 and 31 of the law under which
the Railway Company was incorporated are as
follows:

"Section 22. Each and every railway com-
pany formed under this Act shall pay to the
Treasurer of the State of Michigan "an annual
tax at the rate of one half of one per cent on
the whole amount of capital paid in upon the
capital stock of said company, which said tax
shall be estimated upon the last preceding re-
port of said company, and shall be paid to the
said treasurer on the first Monday of July in
each year, and shall be in lieu of all other taxes
upon all the property of said company.'
"Section 31. The Legislature may at any
time alter, amend, or repeal this Act; but such

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NOTE.-Jurisdiction-review of federal questions arising in state courts. See Matthews v. Zane, 8 U. 8. (4 Cranch), 882, bk. 2, 654, note; Martin v. Hunter, 14 U. 8. (1 Wheat.), 804, bk. 4, 97, note: Williams v. Norris, 26 U. 8. (12 Wheat.), 117, bk. 6, 571, note.

of taxes for the city, on failure of the Company to comply with his demand for payment, in regular course of his proceeding for the col lection, levied upon sixty-one horses to sell at public auction and make the money. The Company thereupon brought an action of re plevin for the recovery of the horses. Upon the trial of this action the only question in dis pute was as to the validity of the tax. The Supreme Court of the State, on writ of error, decided that the tax was valid, and gave judg ment accordingly. To reverse that judgment this writ of error was brought.

The rule which governs our jurisdiction in this class of cases is thus stated by Mr. Justice Miller for the court in Bridge Proprietors v. Hoboken Co., 1 Wall., 143 [68 U. S., bk. 17, L. ed. 576]: The court must be able to see clearly, from the whole record, that a certain provision of the Constitution or Act of Congress was relied on by the party who brings the writ of error, and that the right thus claimed by him was denied." In Crowell v. Randell, 10 Pet., 398, one of the propositions "established,' after a careful review of the cases, was, "that it is not sufficient to show that a question might have arisen or been applicable to the case, unless it is further shown, on the record, that it did arise, and was applied by the State Court in the case." And, at the last term, in Chouteau v. Gibson, 111 U. S., 200 [bk. 28, L. ed. 400], it was said: "From the beginning it has been held that, to give us jurisdiction in this class of cases, it must appear affirmatively on the face of the record, not only that a federal question was raised and presented to the highest court of the State for decision, but that it was decided or that its decision was necessary to the judgment or decree rendered in the case." doch v. Memphis, 20 Wall., 590, 636 [87 U. S., bk. 22, L. ed. 429, 444].

Mur

The reason of this rule is obvious. Our jurisdiction for the review of a judgment of the highest court of a State depends on the decision by that court of one or more of the questions specified in section 709 of the Revised Statutes, and in the way there mentioned. If there ha been no such decision in the suit, there can be no re-examination of the judgment here. It is what was actually decided that we are to con

what might have been decided; and | BENJAMIN BUTTERWORTH,

sdiction must appear affirmatively
of the record before we can proceed,
mast show either in express terms or
plication, not only the question, but

It is not enough to find by searchjadzment that the requisite question ave been raised and presented for demust appear that it was actually Le Diactally decided. Brown v. Colo4. 8., [bk. 27, L. ed. 133].

sioner of Patents, Appt.,

v.

SAMUEL HILL et al.

(See S. C., Reporter's ed., 128-133.)

Commis

Jurisdiction-commissioner of patents—where
liable to suit-service of precess waiver of
objection to jurisdiction.

only to apply this well established
facts as they appear in this record.
Dow is that, under the operation of
and 81 of the incorporating Act, the
med into a contract with this corpora-
et it to taxation otherwise than
provided in section 22, unless it did
in which the Company should be
Samed. The record certainly does
at any such claim was made in the
or that such a question was
ented for decision, or that it was
Nothing of the kind appears, either
or the findings of fact on which
was beard in the Supreme Court.
rest question presented for decision
the State had changed the mode of
what was done, not whether it was
by the Constitution of the United
ing so without specifying that the
set 22, and the provisions of the
ax law of 1882, were to operate on this
Company, and referring to it by
No padre, in deciding the case as ited States for the District of Vermont.
the record, would be likely to sup-
be gave judgment for the receiver

1. Section 739, R. S., providing that no civil suit
shall be brought before the Circuit or District
Courts of the United States against an inhabitant
of the United States, by any original process, in any
other district than that in which he is an inhab-
itant, or in which he may be found at the time of
serving the writ, applies to suits brought under
8 4915, concerning the issue of patents.
2. The Commissioner of Patents being by law
located in the Patent Office, his official residence is
at Washington.

3. The written acceptance at Washington by the
Commissioner of Patents of the service of a sub-
pœna, issued by a district court situated elsewhere,
to have the same effect as if duly served by a proper
officer," merely admits the service with the same
effect it would have if made by an officer in the Dis-
trict of Columbia. No appearance is thereby en-

tered in the cause.

4. A letter written by the Commissioner at Wash-
ington acknowledging the receipt of the bill, re-
turning the subpoena, service accepted," and stat-
ing that he declines to appear, does not amount to
a waiver of the objection to the jurisdiction.
[No. 1044.]

Argued Mar. 9, 1885. Decided Mar. 30, 1885,
nunc pro tunc as of Mar. 9, 1885.

PPEAL from the Circuit Court of the Unit

The history and facts of the case appear in

bewould deny the Company any the opinion of the court.
privilege or immunity special-
or claimed" under the Constitution
d States. It is true that such a
have been set up and claimed, and
below had certified in proper form
and that it was denied, we could
risdiction. The court has, how-ion of the court:
y not made such a certificate, but it
refused to do so upon application
made for that purpose. All this ap-
atively in the motion papers.
erred to the opinion of the court
was found in the transcript, as
on of the federal question in-
The Constitution of Michigan re-
he opinion of the Supreme Court
= writag, signed by the judges_con-
therein, and filed by the clerk. From
in this case it appears that the point
and on which the judgment rested,
the term "corporate rights" as used
I did not include incidental privi-
anities, such as a special stand-
No reference whatever is

Messrs. S. F. Phillips, Solicitor-Gen., and
F. T. Brown, for appellant.

Messrs. Wm. Edgar Simonds and Kitt
redge Haskins, for appellees.

Mr. Chief Justice Waite delivered the opin

This is an appeal from a decree on a bill in equity filed in the Circuit Court of the United States for the District of Vermont against the Commissioner of Patents, under section 4915 of the Revised Statutes. That section is as follows:

"Section 4915. Whenever a patent on application is refused, either by the Commissioner of Patents or by the Supreme Court of the District of Columbia upon appeal from the Commissioner, the applicant may have remedy by bill in equity; and the court having cognizance thereof, on notice to adverse parties and other due proceedings had, may adjudge that such applicant is entitled, according to law, to receive a patent for his invention as specified in his claim, or for any part thereof, as the facts in the case may appear. And such adjudication, if it be in favor of the right of the applicant, shall authorize the Commissioner to issue such patent on the applicant filing in the Patent Office a copy of the adjudication, and otherwise complying with the requirements of law. In Dil McKenney. Clerk, Sup. Court, U. S. all cases where there is no opposing party, a

My question of charter contract. he wide we are satisfied we have no in the case, and the motion to dis

C. & 250; 116 U. 8., 54

copy of the bill shall be served on the Commis-
sioner; and all the expenses of the proceeding
shall be paid by the applicant, whether the final
decision is in his favor or not."

On filing of the bill, a subpœna was issued

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commanding the "Commissioner of Patents of
the United States of America" to appear before
the court in Vermont and answer. On the 18th
of October, 1883, the Commissioner made the
following indorsement en the writ:

"Washington, D. C., October 18th, 1883.
I hereby accept service of the within sub-
pœna, to have the same effect as if duly served
on me by a proper officer, and I do hereby ac-
knowledge the receipt of a copy thereof.
E. M. Marble,

United States) against an inhabitant of the United States, by any original process, in any other district than that of which he is an in habitant, or in which he may be found at the time of serving the writ." We entertain n doubt that this statute applies to suits brought under section 4915. The applicant is to have his remedy under that section by bill in equity and by the adjudication "of the court having cognizance thereof, on notice to adverse parties and other due proceedings had." A bill in equity implies a suit in equity, with process and par ties. The prayer for process is one of the component parts of the structure of a bill, and its And afterwards, and on said 23d day of Oc-purpose is to compel the defendant to appear tober, A. D. 1883, a letter from the Commissioner of Patents was filed, which said letter is in the words and figures following:

Com'r of Patents.
(Office of Com'r of Patents. Received Oct.
18, 1883.)"

and abide the determination of the court on the subject matter of the proceeding. Story's Eq. Pl. § 44.

"Department of the Interior, United States Patent Office, Washington, D. C., October 18, 1883. Sir: I am in receipt of your letter of the 16th instant, enclosing copy of a bill of complaint entitled Hill & Prentice et al. v. The Commissioner of Patents of the United States of America, in the United States Circuit Court for the District of Vermont, praying that said court direct the Commissioner of Patents to issue a patent to the assignees of Hill & Prentice for the invention disclosed and claimed in their application filed in this office March 30, 1880, The subpoena in this case was delivered to for an improvement in milk coolers; also a sub-him in the District of Columbia, and his acceptpœna to appear and answer to said bill on the ance of service was made there. That is ap5th proximo and a certified copy of said sub-parent from the face of his indorsement and pœna. I herewith return the subpoena, service accepted, and have to inform you that I shall not appear in defense in said bill.

The bill in this case was filed against the Commissioner alone, and it does not appear that he was an inhabitant of the district of Vermont. The Patent Office is in the Department of the Interior (Rev. Stat., § 475), which is one of the Executive Departments of the Government at the seat of government in the District of Columbia. Rev. Stat., § 437. The Commissioner of Patents is by law located in the Patent Office. Rev. Stat., § 476. His official residence is therefore at Washington, in the District of Columbia.

Very respectfully,

*

*

E. M. Marble, Commissioner.
Mr. W. E. Simonds, Hartford, Conn."
No other service of process was made on the
Commissioner, and he made no other appear-
ance in the cause than such as may be implied
from his acceptance of service and his letter as
above. In due course of proceeding a decree
was entered adjudging that "Samuel Hill and
Benjamin B. Prentice, as inventors, and the
Vermont Machine Company, as assignee of said
inventors, are entitled to have issued to them
letters patent
* as prayed for in the
petition and bill of complaint." No one was
made defendant to the bill except the Commis-
sioner of Patents, and Hill, Prentice and the
Machine Company, the complainants, were all
citizens of Vermont. Benjamin Butterworth,
the Commissioner of Patents, took this appeal,
and the only question presented under it for
our consideration is whether the Circuit Court
of the District of Vermont had jurisdiction so
as to bind the Commissioner by the decree which
was rendered.

It is contended that the Supreme Court of
the District of Columbia has exclusive jurisdic-
tion of suits against the Commissioner brought
under this section of the Revised Statutes. In
the view we take of this case, however, that
question need not be decided. By section 739
of the Revised Statutes, as well as by the Act
of March 3, 1875, chap. 137, § 1, 18 Stat. at L.,
40 it is provided in substance that, with some
exceptions which do not apply to this case, "No
evt suit shall be brought before either of said
verse Circuit or District Courts of the

the letter which was written afterwards, and
filed in the cause, undoubtedly as proof of a
delivery of a copy of the bill which the law re-
quired should be served on him. Both the in-
dorsement and the letter purport to have been
written at Washington, and the letter in the
Patent Office. Unless, therefore, the acceptance
of service as indorsed on the writ is to be treated
as a voluntary appearance by the Commissioner
in the court in Vermont, without objection to
the jurisdiction, the case stands as it would if
the process had been actually served on him in
the District of Columbia by some competent
officer. The Circuit Court was of opinion that
by his acceptance of service the Commissioner
waived all objection to the jurisdiction and con-
sented to be sued away from the seat of govern-
ment and from his residence. In this we think
there was error. The fair meaning of the in-
dorsement on the writ is that the Commissioner
admits the service with the same effect it would
have if made by an officer in the District of Co-
lumbia. No appearance is thereby entered in
the cause. Service of the subpoena in the Dis-
trict is acknowledged, but nothing more.
the letter which followed the indorsement of
service, both counsel and the court were in-
formed that the Commissioner declined to ap-
pear. The parties proceeded, therefore, at their
own risk and without the consent of the de-
fendant to the jurisdiction of the court. Such
being the case, we are of opinion that the court
was without jurisdiction and had no authority
to enter the decree which has been appealed
from. The Act of Congress exempts a defend-
ant from suit in any district of which he is not
an inhabitant, or in which he is not found at
the time of the service of the writ. It is an ex-
emption which he may waive, but unless waived

In

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