There is no doubt, but that this is a case to which the judicial power of the court extends within the meaning of the constitution, as well as the words of the eleventh section of the law referred to. It is a suit in equity, where the matter in dispute exceeds 500 dollars; and it is between a citizen of the state where the suit is brought, and a citizen of another state. That part of the section which respects the service of process, does not amount to an exception from the general grant of jurisdiction, but secures to parties residing out of the district in which the suit is brought, a privilege of not being liable to be served with process out of the district in which they reside, or of being compelled by such service .to appear in any other district The expressions used in the clause, respecting arrests, clearly import this and no more, and though the phraseology of the next clause seems more applicable to the case of jurisdiction, still it ought to receive the same construction, since the subject is the same, except that it applies to other modes of proceeding than that mentioned in the preceding clause. That the non-residence of the defendant does not affect the jurisdiction, is obvious from this, that service of the process at any time after it was taken out, and before the return day, gives to the court full possession of the cause; and yet the words of the clause are, that “no civil suit shall be brought,” &c. But it appears to the court, that this construction is fully warranted by the decision of the supreme court, in the ease of Logan v. Patrick, 5 Cranch [9 U. S.] 288. In that case, the suit in equity was brought in the circuit court of Kentucky, against a citizen and resident of Virginia, who was not served with process in Kentucky; nevertheless he appeared and answered, and the question was whether the court had jurisdiction of the cause. The supreme court decided in the affirmative. Now it is clear that if non-residence formed an objection to the jurisdiction, unless the process had been served in Kentucky, the subsequent appearance could not have given jurisdiction to the court. But being a mere matter of privilege, it was waved by a voluntary appearance which rendered the service of process unnecessary. And it must be remarked, that this was not the case of an injunction merely, but the bill also prayed for a conveyance of the land in question.
It appears then, that this exemption from the service of process in a state other than that in which the defendant resides, or of being compelled to appear in a suit in another state, may be waved by the voluntary appearance of the party. But-the question is. has such waver taken place in this case. The appearance of the defendants accompanied by a plea claiming the benefit of the privilege, cannot certainly amount to a waver of the privilege, inasmuch as they could not have pleaded the privilege without appearing. But the court is of opinion, that the previous voluntary appearance of the defendants at a former term by a solicitor of this court, unaccompanied by any objection, would amount to such a waver, if upon this plea stating that fact, the court could take notice of the docket entries. This we think cannot with propriety be done. Whether the defendant appeared or not, is a matter of fact which he may deny. His appearance was entered by a solicitor of the court But was he authorised to do this? We think it would be improper to preclude an enquiry into this fact, by deciding it on pleadings which do not put it in issue. The plea therefore must be supported, unless the plaintiffs should move to amend. The plaintiffs made this motion, which was granted. The defendants also obtained a rule to show cause why the appearance should not be struck off, on the ground of its having been entered by mistake.