S KANSAS CITY & T. R. C0. 1J.‘IN’.l‘E`BSTATE LUMBEB OD. 5
not have brought the defendant into this court by original process, or at
least could not have compelled it to stay here against its will, and the
contention is that, as this court could not take originaljurisdiction, it
cannot take jurisdiction by removal. This requires an examination of _
the two sections of the act of March, 1887; an examination in the light
of the construction placed by the supreme court on prior removal acts.
The first section, so far as is material, reads: "That the circuit courts of
the United States shall have original cognizance concurrent with the courts
of the several states of all suits of a civil nature at common law or in
equity, * * * in which there shall bea controversy between citizens ·
of different states;" and in a subsequent sentence: "And no civil suit,
shall be brought before either of said courts against any person by any-
original process of 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 bebrought
only in the district of the residence of either the plaintiff or the defendé
ant." The second section provides that "any suit of a civil nature at
law or in equity, * * * of which the circuit courts of .the United
States are given original jurisdiction by the preceding section, may be re-
moved," etc. It will be observed that the right to object to this court
taking jurisdiction of the case if the suit had been originally commenced
here is a personal privilege of the defendant, and may be waived by it,
There is no lack of power in the court, but only a personal right of de-
fendant. Under the judiciary act of 1789 the question arose whether an
attachment could be issued out of the circuit courts of the United States
against a non-resident of the district, and it was decided in Toland v."
Sprague, 12 Pet. 300, that it could not. But in the same case it was
held that, although the attachment was improperly issued and levied
upon the property of the defendant, yet, inasmuch as the defendant ap-
peared and pleaded to the issue, the court had jurisdiction. I·‘ quote
these words:  
"‘Nowl if the case were one of a want ofjurisdiction in the- court, it would
not, according to weltestablished principles, be competent for the parties, by
any act ofytheirs, to give it. But that is not the case. The court had juris-
diction over the parties and the matter indispute. Theobjection was, that
the party defendant not being an inhabitant of ‘Pennsylvania,~ nor found
therein, personal process could not reach him, and that the process of attach-
ment could only be properly issued against a party under circumstances which
subjected him to process in persomzm. Now, this was a personal privilege or
exemption which it was competent for the party to waive. The cases of Pol-
lard v. Dwight, 4 Cranch. 421, and Barry v. Foyles, 1 Pet. 311, are decisive
to show that, after the appearance and plea, the case stands as if the suit were
brought in the usual manner. And the first of these cases proves that exemp—
tion from liability to process-—and that in case of foreign attachment, too-
is a personal privilege which may be waived; and that appearing and plead-
ing will produce that waiver. "
It was also held under the act that a suit pending in a state courtbe-
tween citizensof different states could be removed by the defendant into
a federal court, although by reason of his not being an inhabitant of or