and citizens of the republic of France," was sufficient for the purposes of jurisdiction.

SAME-VENUE OF ACTIONS

104. Civil suits in the federal courts are to be brought in the judicial district whereof the defendant is an inhabitant, except that, where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit may be brought in the district of the residence of the plaintiff, if the defendant be found therein and served with process. This exemption from suit, however, being of the person and not of the subject-matter, any defects are waived by the appearance of the defendant.

Jurisdiction as Affected by Place of Suit

Section 51 of the Judicial Code provides:

"Except as provided in the five succeeding sections, no person shall be arrested in one district for trial in another, in any civil action before a district court; and, except as provided in the six succeeding sections, no civil suit shall be brought in any district court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant; but where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant."

This adopted the policy of the act of March 3, 1887, as corrected August 13, 1888. Prior thereto, the acts provided that suit should not be brought "in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ." This change, by omitting the right to sue in the district where

a defendant may be found, renders many of the older decisions obsolete.

In cases arising before the Judicial Code took effect, it was held 1 that under the provisions of the Sherman antitrust act of July 2, 1890,52 allowing suits where the defendant resides or is found, suits can be brought in districts where the defendant is not an inhabitant. The language of the Judicial Code is probably to be construed in the same way, as its repealing clause does not specifically mention. this act.

On the other hand, a suit by resident shippers to restrain carriers (none of whom reside in the district where suit is brought) from advancing freight rates cannot be sustained.53

In considering this question as to the place of suit, it must first be observed that the requirement does not go to jurisdiction over the subject-matter, but merely to jurisdiction over the person, and hence may be waived. If the controversy is between citizens of different states, or involves a federal question, or comes within any other of the provisos defining the jurisdiction over the subjectmatter, the courts have jurisdiction of that subject-matter, though suit may be brought in a district where neither the plaintiff nor the defendant resides; and in such cases a general appearance is a waiver of the right to object to jurisdiction over the person. Under the ordinary rules of pleading, a special appearance and a general appearance cannot be combined, but the latter is a waiver of the former; and hence a demurrer which sets up as a ground, not

51 Standard Oil Co. v. U. S., 221 U. S. 1, 31 Sup. Ct. 502, 55 L. Ed. 619, 34 L. R. A. (N. S.) 834, Ann. Cas. 1912D, 734; Michigan Aluminum F. Co. v. Aluminum Castings Co. (C. C.) 190 Fed. 879. See "Courts," Dec. Dig. (Key-No.) § 271; Cent. Dig. § 810.

52 26 Stat. 209, c. 647 (U. S. Comp. St. 1901, p. 3200).

53 Macon Grocery Co. v. Atlantic Coast Line R. Co., 215 U. S. 501, 30 Sup. Ct. 184, 54 L.Ed. 300. See “Courts," Dec. Dig. (Key-No.) § 272; Cent. Dig. § 811.

only the exemption from suit in that special district, but other grounds going to the merits, such as want of equity, is treated as a general appearance, and suit may be maintained. Any appearance, consent, or plea which amounts to a general appearance is a waiver of the question of jurisdiction.55

54

It is not a waiver of the jurisdictional privilege, or a consent to be sued in a certain district, for a defendant corporation to appoint an agent on whom process may be served, as required by state statute. Though the corporation actually does business there, this does not give the right to sue it, so far as the jurisdiction depends upon the residence of the defendant.56

As this is a personal privilege, only the party can plead it whose residence does not come within its requirements.57 This qualification upon the right to sue must be considered, first, in controversies not dependent upon diverse citizenship, and, second, in controversies where the ground of jurisdiction is diverse citizenship.

54 Jones v. Andrews, 10 Wall. 327, 19 L. Ed. 935; Southern Pac. Co. v. Denton, 146 U. S. 202, 13 Sup. Ct. 44, 36 L. Ed. 942; Bluefields S. S. Co. v. State, 184 Fed. 584, 106 C. C. A. 564; Campbell v. Johnson, 167 Fed. 102, 92 C. C. A. 554. It is difficult to reconcile Southern Pac. Co. v. Arlington Heights Co., 191 Fed. 101, 111 C. C. A. 581, with these authorities, especially with Jones v. Andrews. See "Courts," Dec. Dig. (Key-No.) § 276; Cent. Dig. § 815; "Appearance," Cent. Dig. § 114.

55 ST. LOUIS & S. F. R. CO. v. MCBRIDE, 141 U. S. 127, 11 Sup. Ct. 982, 35 L. Ed. 659; Ingersoll v. Coram, 211 U. S. 335, 29 Sup. Ct. 92, 53 L. Ed. 208; Texas Co. v. Central Fuel Co., 194 Fed. 1, 114 C. C. A. 21; Atchison, T. & S. F. R. Co. v. Gilliland, 193 Fed. 608, 113 C. C. A. 476. See "Courts," Dec. Dig. (Key-No.) § 276; Cent. Dig. § 815; "Appearance," Cent. Dig. § 114.

56 Southern Pac. Co. v. Denton, 146 U. S. 202, 13 Sup. Ct. 44, 36 L. Ed. 942; Hagstoz v. Mutual L. I. Co. (C. C.) 179 Fed. 569. See "Courts," Dec. Dig. (Key-No.) § 276; Cent. Dig. § 815.

57 Central Trust Co. v. McGeorge, 151 U. S. 129, 14 Sup. Ct. 286, 38 L. Ed. 98; Horn v. Pere Marquette R. Co. (C. C.) 151 Fed. 626. See "Courts," Dec. Dig. (Key-No.) § 276; Cent. Dig. § 815.

Rule When Jurisdiction Not Dependent on Diverse Citizenship

In this case the residence or inhabitancy of the defendant alone confers jurisdiction.58 It is plain from the language of the act that it was intended to refer only to the residence of citizens of the United States, and hence it does not apply to an alien defendant. If service can be obtained on an alien corporation, and the other requisites of jurisdiction concur, the court can take jurisdiction, though the corporation merely does business at the place where sued, and does not, as in the nature of things it cannot, reside there or become an inhabitant.5o

On the other hand, when an alien is a plaintiff, then the jurisdiction is necessarily governed by the district of the defendant American citizen or corporation.""

As to the meaning of the term "resident or inhabitant," the Supreme Court has settled that. As there were many states which had more than one district, and it would be incongruous to say that a litigant was a citizen of a district, the two words are practically synonymous, and mean the regular home or domicile of the party in question.1

A comparatively recent act of Congress requires surety companies to file a power of attorney in any district where

58 In re Keasbey & Mattison Co., 160 U. S. 221, 16 Sup. Ct. 273, 40 L. Ed. 402; Cound v. Atchison, T. & S. F. R. Co. (C. C.) 173 Fed. 527; Smith v. Detroit & T. S. L. R. Co. (C. C.) 175 Fed. 506. See "Courts," Dec. Dig. (Key-No.) § 270; Cent. Dig. § 810.

59 BARROW S. S. CO. v. KANE, 170 U. S. 100, 18 Sup. Ct. 526, 42 L. Ed. 964; Tierney v. Helvetia Swiss F. I. Co. (C. C.) 163 Fed. See "Courts," Dec. Dig. (Key-No.) §§ 270, 274; Cent. Dig. §§ 810,

82. 814.

60 Galveston, H. & S. A. R. Co. v. Gonzales, 151 U. S. 496, 14 Sup. Ct. 401, 38 L. Ed. 248. See “Courts," Dec. Dig. (Key-No.) §§ 270, 274; Cent. Dig. §§ 810, 814.

61 Shaw v. Mining Co., 145 U. S. 444, 12 Sup. Ct. 935, 36 L. Ed. 768; Galveston, H. & S. A. R. Co. v. Gonzales, 151 U. S. 496, 14 Sup. Ct. 401, 38 L. Ed. 248; In re Keasbey & Mattison Co., 160 U. S. 221, 16 Sup. Ct. 273, 40 L. Ed. 402; Freeman v. Surety Co. (C. C.) 116 Fed. 548. See "Courts," Dec. Dig. (Key-No.) § 270; Cent. Dig. § 810.

they give a bond, before they can give bonds to the United States or in the United States courts."?

The fifth section of this act authorized suits where the bond was given. On the same day (August 13, 1894) an act was passed for the protection of supply men in erecting public works, which was amended February 24, 1905,** by requiring suit in such case where the contract with the United States was to be performed and not elsewhere.

Under section 6 of the employer's liability act as amend ed April 5, 1910, suit may be brought in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action.*

65

When Jurisdiction Dependent on Diverse Citizenship

66

In this case the suit may be either in the district of the residence of the plaintiff or of the defendant. It cannot, however, be in the residence of the plaintiff unless legal service can be secured on the defendant. And, in the case of a corporation, legal service cannot be obtained upon it, if it does not carry on business in a district, by merely serving one of its officers who happens to be a resident there. Hence, as to nonresident defendants, they can be

67

62 28 Stat. 279 (U. S. Comp. St. 1901, p. 2315).

63 28 Stat. 278, c. 280 (U. S. Comp. St. 1901, p. 2523).

64 33 Stat. 811, c. 778 (U. S. Comp. St. Supp. 1911, p. 1071); Davidson Bros. Marble Co. v. U. S., 213 U. S. 10, 29 Sup. Ct. 324, 53 L. Ed. 675; U. S. v. Congress Construction Co., 222 U. S. 199, 32 Sup. Ct. 44, 56 L. Ed. 163. See "Courts," Dec. Dig. (Key-No.) §§ 269, 270; Cent. Dig. §§ 809, 810.

65 Act April 22, 1908, c. 149, 35 Stat. 65, as amended by Act April 5, 1910, c. 143, 36 Stat. 291 (U. S. Comp. St. Supp. 1911, p. 1324); Newell v. Baltimore & O. R. Co. (C. C.) 181 Fed. 698. See "Courts," Dec. Dig. (Key-No.) §§ 269, 270; Cent. Dig. §§ 809, 810.

66 Barnes v. Telegraph Co. (C. C.) 120 Fed. 550; Kibbler v. St. Louis & S. F. R. Co. (C. C.) 147 Fed. 879; Bruner v. Kansas Moline Plow Co., 168 Fed. 218, 93 C. C. A. 504; Green v. Chicago B. & Q. R. Co., 205 U. S. 530, 27 Sup. Ct. 595, 51 L. Ed. 916. See "Courts," Dec. Dig. (Key-No.) §§ 272, 273; Cent. Dig. §§ 811, 813.

67 Conley v. Mathieson Alkali Works, 190 U. S. 406, 23 Sup. Ct. 728, 47 L. Ed. 1113; Cody Motors Co. v. Warren Motor Car Co. (D.