
    Shelby & Collins vs. Johnson & Burk.
    1. Matter in abatement, arising out of personal privilege, can only be pleaded in person, and not by an attorney of the Court. An appearance by attorney waives the objection to the process, and gives the court jurisdiction.
    2. A plea by a resident of Davidson county, averring service of the original writ on a resident of Arkansas, in the county of Shelby, and a counterpart on himself in Davidson, is a valid plea, not to the general jurisdiction of the court, but to a want of jurisdiction of the person of the defendant arising out of personal privilege.
    Elisha R. Johnson and William R. Burk, partners under the name of Johnson & Burk, sued Thomas M. Collins, a resident citizen of Arkansas, as the maker, and John Shelby and S. Bradford, citizens of Davidson county, Tennessee, as the endorsers of a bill single, in the Circuit Court of Shelby county. The original writ was served on Collins in Shelby county, and a counterpart was issued to Davidson, served upon Shelby, and returned not found as to Bradford. The declaration was filed against Collins and Shelby, and a nolle prosequi, entered as to Bradford. The defendant Shelby, by attorney, filed a plea in abatement, setting forth the facts, and praying judgment of the writ and declaration, and that the same might be quashed. These pleas were sworn to by E. M. Yerger, as agent and attorney of Shelby. The plaintiffs demurred to these pleas, and the presiding Judge, William C. Dunlap, sustained the demurrer, and ordered the defendants to answer over. Pleas in bar were then put in but afterwards withdrawn, and a judgment by nil elicit taken against defendants. The case was brought up by writ of error.
    
      E. M. Yerger, for plaintiffs in error, said:
    He admitted all that was contended for as to appearance by attorney, waiving objections to the jurisdiction of the court over the person. But this was not the character of the plea in this case. It is not a plea to the jurisdiction at all. Such pleas arise from privilege of person, and are always founded upon personal exemption of the party to the jurisdiction of the court under any circumstances, as where an attorney or officer of a particular court, or scholar of the universities, is sued out of the proper court. Ch. PL 443. ‘
    
      The plea in this case is a mere plea in abátementfor misjoin-der of parties. It is the same as a plea of non-joinder, where the defendant alleges there are others who ought to be sued, and are not, and he is not liable to that separate form of action or writ. The defendant does not pretend to say, he is not subject to the jurisdiction of the Circuit Court of Shelby county. His person is excused by no privilege from process of that court when found in that county, or when properly joined in a suit with a resident of that county. The whole objection is to the form of the writ. It is a counterpart. If it appeared in the writ or declaration that neither defendant resided in Shelby county, a demurrer would lie, — as would be the case if suit were brought against the maker and endorser of a note, if our statute did not authorize it. In such cases, if the facts do not appear in the record, the party would be bound to resort to a plea. And such a plea would be a plea of misjoinder.
    Then, in a plea of misjoinder, can the defendant appear by attorney? Most clearly. He is not denying the jurisdiction of the court as to the subject matter, nor as to his person, but merely denying his liability to that form of action or writ. And why may he not appear by attorney in such case, as in the case supposed above, of non-joinder of a co-obligor, in suit brought on a joint obligation at common law?
    
      H. G. Smith, for defendants in error, insisted:
    That this was a plea in abatement to the jurisdiction of the person of Shelby, and therefore bad, because the defendant appeared by attorney. . A like plea in 2 Humph. 404, was so designated by this court. The court is of general jurisdiction, has rightful cognizance of the subject matter, and of the defendant if he get into court.
    He insisted that-the analogies in the Federal Courts were exact and abundant. And referred to and commented on the cases which have been decided in those courts arising out of the provisions of the 11th sec. of the judiciary -act of 1789. 14 Pet. S. C. R. 60; 11. Ib. 35 and 37; Pet. C. C. Rep. 489, cited 2 Pet. Dig. 585.
    Mr. Yerger, in reply, said: The cases referred to were all cases as to the jurisdiction of the court. Nor were the decisions made on the section of the judiciary act referred to. They were upon the law which gives the Circuit Court jurisdiction only in contests between citizens of different States, which is to be found in the constitution of the United States, art 8, sec. 2. These decisions, he thought, supported his view of the law. The statute of the United States really gives a personal privilege. It is this personal privilege or exemption which makes such pleas, as the pleas in the cases cited, pleas to the jurisdiction of the person. It is the same as the officer or student referred.to before. But as there is no such privilege or exemption in this case, but a right to require a proper joinder of parties defendants, it is a plea in abatement.
   Turley, J.

delivered the opinion of the court.

This is an action of debt commenced by writ issued to the county of Shelby, and a counterpart thereof to the county of Davidson. The action thus brought, was against Thomas M. Collins, John Shelby and S. Bradford. The original process was served on Thomas M. Collins in the county of Shelby, and the counterpart on John Shelby in the county of Davidson, S. Bradford not found.

John Shelby, by attorney, filed pleas in abatement, which are, in substance, that neither he nor Thomas M. Collins were resident citizens of the county of Shelby at the time the process was issued and served, but on the contrary that he was a resident citizen of the county of Davidson, and Thomas M. Collins of the State of Arkansas.

To these pleas the plaintiff demurred, and the demurrer was sustained by the court, and the question now presented for our consideration is, whether the demurrer was well taken.'

It is not controverted, that under the statute, the subject matter of the pleas is sufficient to abate the process; but, it is insisted, that it being the matter in abatement arising out of personal privilege, it can only be pleaded in person, and not by an attorney of the court, and that an appearance by an attorney has waived the objection to the process, and given the court jurisdiction of the person of the defendants. The Circuit Court of the county of Shelby is a court of general jurisdiction, and the pleas in abatement in this case are not to the general jurisdiction of that court, but to a want of jurisdiction of the person of the defendant, arising out of the fact that it was his personal privilege to be sued only in the county where he resided, or in a county where he might be found, or by a counterpart of the original writ issued to the proper county.

We can see no difference between such privilege, and that of an attorney of the king’s bench or common pleas in England to be sued in their respective courts, and it has always been held in England that if an attorney of the court of king’s bench be sued in the common pleas, and wishes to avail himself of the defence he must do it in person, and so likewise of an attorney of the court of common pleas sued in the king’s bench.

And this because (as it seems to us) that, in repudiating the court, the officers of the court are necessarily repudiated, and in recognising the officers of the court the jurisdiction of the court is submitted to. But that is not so, when the court has no jurisdiction of the subject matter; for consent cannot give it jurisdiction, and a suitor in it may avail himself of the services of its officer for the purpose of showing this fact, because it is the duty of the suitor to shew the want of jurisdiction, that the court may be kept from doing an illegal and void act.

We therefore affirm the judgment of the Circuit Court.

Note. See Rich et als. vs. Rayle 2 Humph. Rep. 404.  