
    Campbell v. Wilson.
    The general principle of international law seems to be that without a proceeding in rent o personal notice .to the defendant by process served within the territory jurisdiction can not be rightfully exercised ; for, *• considered in an international point of view, jurisdio tion to be rightfully exercised mint bo founded on the person being within the territory or the thing being within the territory.” But as every State has the right to prescribe the manner in which its own courts shall acquire and exercise jurisdiction, proceedings conducted in the mode prescribed will of course be valid within the territory. Hence, when our statute provides that service in certain cases mav bo made by publication. the jurisdiction of the court thus acquired cannot be questioned here, howe^oi the judgment might be treated, if made the foundation of an action in another State. (Note G8.)
    Where the plaintiff and defendant were non-residents and the suit was commenced by attachment the defendant appeared and answered to the merits and obtained a conwnuaime; afterwards, on motion of the defendant, the attachment was quashed, the defendant tlmn Spoving to dismiss the suit for want of jurisdiction: Held, That he had submitted to the exercise of jurisdiction over his person, and it was too late to claim ilia personal immunity and to object to the exercise of the jurisdiction of tito court on ihat ground. (Note GO.)
    Where an inhabitant of the State is sued out of the county in which he has his domicile he should plead the fact in abatement of the suit. (Note 70.)
    The case of Ward v. Lathrop (4 Tox. R., 180) reconcilable with this case.
    In proceeding by attachment the incipient steps should be as nearly cotemporaneous as they conveniently may lie. so that suspicion be not thrown upon the fairness of the plaintiff’s case. There should not bo such delay as to afford a presumption that the facts stated m the affidavit had ceased to exist. Where the affidavit was made on the sixth, the bond bore date on the seventh and was filed on the ninth, and the attachment, &c., issued on the eleventh: Held, That the delay did not justify the quashing of the attachment on that-ground. (Note«7l.)
    The act of 18-10 (Hart. Dig., p. 771) did not require “due diligence” to bind the drawer of a hill where there was no acceptance. But quere whether the law merchant did not apply in such a case. (Note 72.)
    Rulings of the court, below, which obviously cannot affect the ultimate decision of the case cannot constitute grounds for reversing a judgment.
    Appeal from Harrison. This suit was brought by the appellee as payee tc recover of the appellant as drawer the amount'dne upon a bill of exchange, a? follows:
    " Bowie county, Texas, December 21,1S44. Messrs. Fellows, John, son & Co., commission merchants, blew Orleans: Pay tb Emzy Wilson 01 order six thousand dollars, and charge the same to my account.
    “James P. Campbell.”
    The petition stated that the residence of thfe plaint ill' was in the State oi Arkansas and that of the defendant in the State of Missouri. It set out the instrument sued on and alleged its making and delivery in this State; it alleged the presentation to and demand of payment of the drawees on the 5th day of March, 184.1, the protest for non-payment, and notice thereof to the defendant; it further alleged that the drawees had no effects of the defendant in their hands, neither at the time of the drawing of the bill, nor from that time to nor at the time when the same was protested for non-payment, and that there was no consideration moving front the drawer to the drawees for the acceptance or payment of the bill.' The bill of exchange sued on and the protest for non-payment and certificate of notice to the defendant were made exhibits to the petition. It was further alleged that on the 13th clay of December, 1S45, the defendant paid to the plaintiff upon said bill the sum of $1,163 mid 10 cents and the interest thereon, and on the 17th day of May. 1846, the further sum of $2,500 and the interest thereon ; but that he refused to pay the residue of the bill, to recover which this suit was brought. There was also a claim for the cost of protest and notice and the damages for re-exchange, which does not appear to have been ultimately insisted on or allowed. The petition further alleged that the defendant had property within the jurisdiction of the court subject to attachment, and that James D. Todd, who resided in that county, liad effects of the defendant in his hands, and that John W. Scolt, who resided in the county of Cass, was largely indebted to the defendant. The petition conclude!! with a prayer for a citation to the defendant, '.nd a writ of attachment to be levied on his property, and that Todd and Scott be summoned as garnishaes’to answer. <&r. Appended to t.he petition was an affidavit'of the. truth of its contents,-the nature and amount of indebtedness, that the defendant was not a resident oE this State, and that the attachment was not sued out for tiie purpose of injuring the defendant. The affidavit was made on the Oth day of September, 1843,' the bond bore date on the 7th and was filed on the 9th, and the attachment, citation, and other process issued, on the 11th day of the same month. The attachment was levied th-e day it issued. Todd and Scott were summoned as garnishees. Tiie citation to the defendant was returned not executed. On the 13th of the same month a citation was issued to Cass county, which was returned executed by personal service on the 23d day of November thereafter. Tiie answer of tiie garnishees,. Todd and Scott, showed an indebtedness on the part of tiie latter to the defendant of two promissory notes in the hands oE the former, not then due, for the sum of 83,250 each. ‘ At the December Term, 18-18, being the first term after service, the defendant appeared and fded his answer, consisting of exceptions to tiie petition and objections to the want of due. and legal diligence lo charge the defendant as drawer of the bill. lie further answered by a general denial; a plea of failure of consideration; accord and satisfaction ; reconvention; a former judgment; a plea that the canse oE action was barred, because the plaintiff did not bring suit against the defendant in the county oE Bowie, “ where the defendant then resided,” by the first or second; term of the court thereof after the cause of action accrued; and a like plea oE a failure to bring suit to Hie first or second term o£ the District Court of Cass county, in this State, “where the said defendant resided at tiie institution of this suit.” The cause was continued as on affidavit of the defendant. At the June Term, 1849, the defendant moved tiie court to quash the levy upon the attachment for canses assigned in the motion. lie also moved the courts to abate tiie writs of attachment and garnishment, and to strike out the answers o£ the garnishees, for various reasons assigned in tiie several motions made by him, but one of which, relating to the attachment, is noticed by tiie court, which was tiie lapse of time between tiie affi iavit, bond, and issuing oE tiie writ. Ou a subsequent day of tiie term lie moved tiie court to dismiss the cause for tiie want of jurisdiction. The plaintiff amended his petition by way of replication to the jilea of a want of diligence, alleging that the defendant ceased to be a citizen of the State before the first term of the District Court of Bowie conniy after the accruing of the cause of action.
    The court sustained the motion to quash tiie writs of attachment and garnishment and to strike out Ihe answers of tiie garnishees. The motion to dismiss tiie case and the exceptions to tiie petition and amendment thereof were overruled. At the trial the plaintiff gave in evidence the bill of exchange sued ou and tiie protest. lie proved by a witness (Todd) that i he defendant left Texas about tiie 20th of February, 1815, or between that and tiie 1st of March of that year; that lie (witness) liad frequently heard the defendant say that he owed the plaintiff the balance claimed by him upon the draft sned on ; that he offered to pay it in notes, and once wanted the plaintiff to take a negro upon the debt, but the parties did not stgroe as to the notes aud negro; the witness stated that lie had heard lbe defendant make these admissions within three mouths previous to the trial, and lie had heard him admit to the plaintiff that lie owed the debt. This witness proved tiie payment of twenty-five hundred dollars upon the draft ou the 7th day of May, 18-lG. lie had heard file defendant say that the draft had been dishonored,' and that lie had received a copy of, the protest and notice. The defendant came to Texas on business in 184G, and returned to Texas to live in the fall of 1848, after the commencement of this suit. From the time the defendant left Texas in 1845, tiie witness had had from six to ten thousand dollars in notes due the defendant in his hands, and the defendant at various times had had other property in Texas. At tiie date of tiie draft tiie plaintiff was a non-resident of this State and had so continued. The defendant objected lo the testimony of the witness respecting ills admissions and declarations, but the court overruled the objection.
    
      The court instructed the jury that “the removal of the defendant from Texas before the Spring Term, 1845, of the District Court excused the plain-till'from his obligation to commence suit against him before the first or second term of the court after the dishonor of the bill;” that “if the bill was protested for non-payment, and notice thereof given to the defendant, he was still liable on this demand ; that the verbal admissions of (lie defendant to the plaintiff and others were good evidence to prove a waiver of notice, and that a part payment of the bill will also amount to a waiver of notice; ” that “if the plaintiff was,not a citizen of this State when the bill was dishonored, nor (lie defendant, the defendant could not have been sued here, and cannot now claim the benefit of the law of this State, which dispensed with the necessity of protest and notice, but must abide by the law merchant.”
    There was á verdict and judgment for the plaintiff; a motion for a new trial, which the court overruled, and the defendant appealed.
    The assignment of errors related to—
    1st. The overruling of the motion to dismiss the cause for want of jurisdiction.
    2d. The overruling of the exceptions to the petition.
    3d. The instructions to the jury.
    4lh. The admission of evidence.
    
      M. J. Hall, for appellant.
    I. It is contended for the appellant that the court below bad no jurisdiction of the cause, the parties being" non-residents of this State, and that the demurrer to the cause of action ought-to have been sustained. Our courts are appointed to determine controversies between our own citizens and not between aliens. And it is believed that this question was decided by this court in t.ho case of Ward v. Lathi-op, at the December Term, 1849. There are but two things that can give the court jurisdiction : the person or the property of defendant being- within the territory of the Slate. It is competent for States to adopt local regulations by which property within their limits may be subjected to the payment of debts; but such proceedings are binding only so far as the property extends. (Story’s Con. of Laws, 449, 450; Bissell v. Briggs, 9 Mass. II., 462; Bobertson v. Ker, 3 Id., 25, note; Bea v. Hayden, Id.; Walton v. Mcini, Id.; Fields v. Taylor, Id.)
    Where no other, court in the State lias jurisdiction, a plea in abatement is not necessary, but it may be taken advantage of by a plea that goes to the action or by demurrer. (Barrel v. Benjamin, 15 Mass. B., 338; Beat). Hayden, 3 Id., 25.) ■
    This action having been commenced by attachment against property, it may have been legal so long as the attachment was sustained; but when the attachment was quashed there was no longer any foundation on which it could rest,.and the whole-case should have been dismissed. The fact that the defendant below appeared auá answered by attorney after the attachment was quashed call not give the court jurisdiction, as he was compelled to do so by t ho court’s decision that the court had jurisdiction in overruling the demurrer. It could at most amount to nothing- more than the defendant’s assenting that the court should try the cause, and consent cannot give jurisdiction. In the case of Ward v. Lathrop the defendant, having demurred, plead the general issue, and still the court was decided to have no jurisdiction; and if'the answer in one case would not preclude the defendant from disputing- the jurisdiction of 'tlie court, neither would it in the other.
    II. It is further contended for appellant that the laches of appellee have precluded him from maintaining the action; The draft or bill was drawn in December, 1814. The first District Court thereafter was held in April, 1S45, and the second in October, 1845. And under the statute of 1840 (Hart. Dig., art. 2520) the bolder of the bill was required to commence suit by tire first Or second term of the District Court after the non-acceptance of the bill, and the fact that the drawer, Campbell, ceased to be a citizen of the Bepublic did not excuse tbe bolder from bis obligation to use that diligence to collect the bill which the statute has substituted for protest and notice. It was iu his power, after Campbell’s removal from Texas, to commence an action by attachment against the property of Campbell. (See Statutes 1839, p. 103, sec. 7.)
    It is iu proof that Campbell had property in Texas continually frqm his removal iu 1845 till his return in 1848.
    III. The court'below erred iu charging the jury that the law merchant., as understood in England and most of the American Slates, controlled this ease. It is governed entirely by the laws of Texas. The bill was drawn in Texas, and it is a settled principle that tiie drawer of a bill of exchange is liable according to the lex loci. Tiie drawer of a bill on a foreign place does not contract or undertake to pay the bill at that foreign place, but to guarantee its payment; and on lion-acceptance or non-payment, lie is liable according to the law of the place where the bill was drawn.. (Story on Bills, secs. 153, 157; Prentiss v. Savage, 13 Mass. R., 23; Hick v. Brown, 12 Johns. R., 142; Powers v. Lynch, 3 "Mass. R., 76.) This is one of those cases in which under tiie law merchant the drawer would have, been cutitlcd to notice whether the drawer had any effects in tiie hands of the drawees or not: lie is presumed to llave liad effects, and it lies on the holder to prove the. contrary; and having failed to do it in this instance, tiie appellant is entitled to all the benefits resulting from his having effects in tiie hands of the drawees. (H. S. Dig-, p. 424; Bastero. Graves^2 Marsh. R., 152; Thompson®. Stewart, 3 Conn., 172.) Then, if tbe drawer had effects in tbe hands of the drawees, lie was entitled to notice or rather to the substitute for notice, that diligence which the statute requires; and not having exercised it, bis action is barred.
    IV. The court erred in charging tiie jury that a subsequent part payment or a subsequent verbal acknowledgment of tiie debt would waive notice and take tiie case out of tiie operation of the Texas statute. In tills country such acknowledgment or part payment will not revive it, unless tiie same be in writing and signed, &c. (See 121.11 section statute of limitations.) “When an action may appear to be barred by a law of limitations no acknowledgment of tiie justice of the claim made subsequent to tiie time it became due shall ba admitted in evidence to take the case out of tiie statute unless such acknowledgment be in writing and signed, &c.” (Hart. Dig., p. 729, sec. 12; Coles v. Kelsey, 2 Tex. R., 541.)
    TP". P. IHIl, for appellee.
    I. A suit by one non-resident against another commenced by attachment is within the jurisdiction of the courts of Texas. The non-residence of the plaintiff constitutes no disability to sue. All civilized nations “open their tribunals to foreigners in the same manner and to the same'extent that they are open to their own subjects, and give them the same redress as to rights and wrongs which they deem lit to acknowledge in their own municipal codes for natives and residents.” (Story’s Conflict of Laws, 2d ed., see. 557, p. 469.)
    II. Was tiie jurisdiction of the District Court at an end when the attachment was abated ?
    1st. It is submitted that the attachment ought to have been sustained; that the wilts issued on tiie second day after the filing of the bond ought not to vitiate, tiie attachment. If there were laches, id was of the officer, not of tiie plaintiff. Tiie delay.in filing the bond and issuing writ was not such as to throw suspicion upon the integrity of tiie proceeding or defeat the remedy pursued. Tiie requirement of section o, that tiie plaintiff, his agent or attorney, shall at the time, of making such affidavit give bond, is not to be taken in its most literal and confined sense. The true doctrine is stated in Sydnor v. Chambers to be, that the spirit and intention of tiie law is opposed to an affidavit to a fact which may have existed at the time it was sworn to, being held up for mouths and then put info life and being after an entire change of the facts and circumstances of tbe case. No final and invariable rule can be adopted, but the lapse of time must be such as to raise the presumption that the grounds for the affidavit have passed away.
    The appellee only asks that the proceedings by attachment be inquired into in the event the court shall consider that the jurisdiction of the District Court can only be sustained by setting up the attachment. But if at the time of tría 1 and judgment the District Court had jurisdiction to render a judgment binding in personam on the defendant, the appellee is content that the judgment abating the attachment be not disturbed.
    •2d. Was, (hen, the jurisdiction of the District Court ousted when the attachment was abated?
    Whether jurisdiction be founded upon the person or property being in the territorv, the judgment will be deemed valid to the extent of that jurisdiction. (Chill, ifiv., 2 Cow. & Hill’s Hotes, 111.)
    To make the judgment binding ii\ personam there must be personal service., and the notice must be served upon the defendant while he is within the jurisdiction of the sovereignty under which the court acts. But if the party in any instance chooses to appear and contest the merits, thereby waiving his personal immunity and submitting to the jurisdiction of the court, the judgment would then doubtless bind him personally, and be entitled to the same respect as if obtained in the ordinary mode. (Ib., 112, 113.)
    In the case of Starbuek v. Murray (15 Wend., 150) Judge Harcy, in delivering the opinion of the court, says : “If a citizen of one State should go into another to claim property seized ou attachment, and subject the attaching creditors to costs and expenses which in the due course of proceedings should be adjudged to them by a court of competent authority, will it be pretended that lie could resist the payment of these costs on the ground that he was not subject to the jurisdiction of Hie court? So if the proceedings were not in rem, but the property of the defendant was attached to compel him to appear anti answer to proceedings in personam, and he did in fact appear and litigate the canse with tbe plaintiff, lie could not bo heard to question (lie judgment of tlie court.” (Moore v. Spademan, 12 Serg. & Rawle, 2S7-2S9; Mayhew v. Thatcher, 5 Comí. R., 31.)
    Tills very point was’decided in Green, v. Hill by this court at December Term, 1S49.
    3d. The effect of a plea to the jurisdiction cannot he given to the demurrer, first, because the demurrer assigns special exceptions, of which the want of jurisdiction is not one, and shows by its whole tenor and effect that the jurisdiction of the court was not intended to be questioned; and second, because the want of jurisdiction does not appear on the face of the petition. The non-residence of the parties does so appear, but this is cured by set! ing forth a contract (sued upon) which was made in Texas, and by its very nature raises an assumpsit by the defendant to perform it here by averring that the defendant has property in Texas, subject to the jurisdiction of the court, and effects and debts due him in Harrison county.
    The face of the petition does give jurisdiction to the court, and therefore for that cause was not demurrable.
    4tb. The plea to the jurisdiction came too late, being’ filed at the second term, and after appearance and pleas to the merits. The pleas to the merits filed at (iie first term, the rule for security for costs made ou defendant’s motion, and the continuance of the cause by him, imply a waiver of all objections to the jurisdiction of the court.
    “A peremptory exception cannot be received after the answer is filed.” (Coles v. Kelsey, 2 Tex. It., 543.)
    Opinions S. C., 1848 ; Love et al. v. Hclntire.
    After a plea in bar it is too late to object to the jurisdiction. (Smith v. Elder, 3 Johns. It., 105; Rogers v. Woodbury, 15 Pick. It., 10(5; 4 McCord R., 79; 3 Id., 2S0.)
    The doctrine that “consentcannot give jurisdiction ” is not applicable here.
    III. The act dispensing with the necessity of protesting negotiable instruments for dishonor, and of giving notice thereof. (4 Laws of Texas, 144,) was not intended to repeal the law merchant or destroy the effect of protest and notice, but to give another and different remedy to holders of negotiable instruments, in addition to that given by the law merchant.. If the holder of any instrument mentioned in tlie act chose to have it protested and notice given to the party entitled to it, such protest and-notice liad the same legal e.if'eets and consequences as before the passage of the act referred to.
    If a statute give merely a new remedy where one existed at common law it is .cumulative, and the party injured is at liberty to pursue either. (I Sheph. lb, 371; 2 U. S. Supp. Dig., 807; Long v. Scott, 1 Blaekf. lb, 405.)
    IV. If the plaintiff was bound by law to instituto bis suit against the defendant according to the act of 1S4Ó, 4 Texas Laws, 144, then we insist that the defendant’s absence and non-residence excuse the failure to sue. But if protest and notice superseded tire diligence prescribed in said act, then the fact in question was wholly immaterial and impertinent.
    V. The fact of protest and notice being fully proveu made it unnecessary either to aver or prove the oral admissions of defendant of his liability to pay the debt.
    The plaintiff’s case was fully made out by producing the bill of exchange and proving protest and notice, all of which was done.' The proof of defendant’s admissions was cumulative and corroborative, but surely could not vitiate the effect of (.be evidence already offered.
    But the admissions of defendant of his liability on the draft, his promise to pay it, or liis part payment of it are eaeli and all modes of proving due notice of the dishonor of the draft, and dispenses with direct proof of notice.
    VI. The 9th ground — that “there was no proof that defendant had no effects in the hands of the drawees,” &o. — is wholly neutralized and destroyed by proof of protest and notice in any of the modes before discussed.
    VII. As to the charge of the judge, I-need only say, in the language of Mr. Justice Wheeler in Mercer v. llall, 2 Tex. 11., 2S-1,, that “a verdict will not be set aside for a misdirection of the judge when it is manifest that the party complaining sustained no injury from tlie misdirection.”
    When the verdict clearly appears to have been equitable a new trial will not be granted, although the correctness of the ruling of the law be doubtful. (Rogers v. Page, Brayt. R., 1G9; Breckinridge v. Anderson, 3 J. J. Marsh. Ib, 710; Ingraham v. S. C. Ins. Co., 1 Const. R., 707.)
    A new trial will not be granted where justice has been done by the verdict. (Howard v. Aiken, 3 McCord. R.. 4G7; Blythe v. Sutherland, Id, 2DS; 2 Geo. Ib, 17; Stephens v. Crawford, 1 Id., 5S0; MeCeskey v. Leadbetter, Id., 55G; 1 Peters U. S. R., 183.)
   Wheeleb, J.

The authorities and cases to which we have been referred by counsel in argument are for the most part those in which the question of jurisdiction lias arisen where a judgment rendered in one State or nation has been brought in question in the tribunals of another. It has then become an inquiry whether the court liad jurisdiction to render the judgment, and consequently the question lias been considered in an international point of view. A reference to these authorities will perhaps suffice for the consideration of this case; but they are to be received with the qualification that they must yield to our own local legislation respecting the law of remedies'. It is universally admitted that the forms of remedies and the modes of pursuing them are to be regulated solely and exclusively by tiie lex fori, or the law of the place where the action is instituted. Every State is at liberty to prescribe such regulations on the subject as it may deem-proper, which will be binding in its own forums and upon those who maybe within its territory and subject to t tie process of its courts. It is the right of every nation to adopt such a course of proceedings and to prescribe such a system for the regulation of remedies .and the adjudication ot rights as may best comport with its convenience and interests anil the interests oí its own citizens for whom its laws are particularly, designed.

In the absence oE local regulations the principles of the law of nations, being supposed to be founded on natural right and justice, may safely be applied. But the citizens and forums of each nation can appieal to no higher authority than the laws of their own State or sovereignty.

The general principle of internatiobal law seems to be that without a proceeding in rem or personal notice to the defendant, by process served within the territory, jurisdiction cannot bo rightfully exercised; for, “considered in an international point of view, jurisdiction, to bo rightfully exercised, must be founded on the person being within the territory or the thing being within the territory.” (Story’s Conii. Laws, sec. 539.) But as every State lias the right to prescribe the manner in which its own courts shall acquire and exercise jurisdiction, proceedings conducted in the mode prescribed will of course be valid within the territory. Hence, when our statute provides that service in certain cases may be made by publication, the jurisdiction of the court thus acquired cannot lie questioned here, however the judgment might be treated if made the foundation of an action in another State.. (McMullen v. Guest, Present Term.)

The seizure or attachment of property within the territory upon general principles of international law “constitutes a just ground of proceeding to enforce the rights of the plaintiff to the extent of subjecting such property to execution upon the judgment.. Blit if the defendant has never appeared and contested the suit, it is to be treated (says Story) to all intents and purposes as a mere proceeding in rem, and not as personally binding on the party as a decree or judgment in personam; or in oilier words, it only binds the property seized or attached in (ho suit to the extent thereof, and is in no just sense a decree or judgment binding on him beyoud the property. In other countries it is uniformly so treated, and is justly considered as having no extra territorial force or obligation.” (Id., sec. 549.) This is understood tobe the doctrine maintained by the opinion of Chief Justice Parsons in the case of Bissell v. Briggs, (9 Mass. 11., 461,) cited by counsel for the appellant. But I apprehend the same doctrine would not hold as to the effect of the judgment in the State where it was rendered. That must depend upon the conformity of tile proceedings to the local laws and the consequence attached to the judgment by them.

It is not questioned that it was competent to acquire jurisdiction in the present, case by attachment. But it is insisted that when the attachment was quashed, the jurisdiction of tiie court fell with it.

The defendant, however, in the meantime had been personally served with process, and liad appeared and answered to the merits. He took no exception to the proceeding by attachment or to the jurisdiction of the court in the first instance, but contested the plaintiff’s right of action upon the merits. And it it was not until after a continuance at his instance that his objections to the process by attachment and to the jurisdiction of the court wore taken. He liad then submitted to the exercise of jurisdiction over his person, and it was too late to claim his personal immunity and to object to its exercise on that ground. (Green v. Hill, 4 Tex. R., 405.)

It is true that when the court lias not jurisdiction of the subject-matter consent cannot give it. But a defendant may waive his personal privilege of being sued in a particular place, and he may submit his person to the jurisdiction of the court elsewhere. This the defendant liad effectually done before moving to quash the attachment or to dismiss the case for the want of jurisdiction. ne. had contested the plaintiff’s demand upon various grounds of law and fact without having been beard to malee any objection to the authority of the court to take jurisdiction of his person.

The court having acquired jurisdiction of (lie person of the defendant the objection cannot ayail him here; and if the judgment were drawn in question in another State and its validity were lo be tested by the rules of international law, it could not, it is conceived, be successfully impeached (here for the want of jurisdiction. In Mayhew v. Thatcher et al., (6 Wheal. R., 129,) where suit had been brought in Louisiana upon a judgment rendered in Massachusetts in an action commenced there by attachment, but in which the defendant subsequently appeared -and took defense, on error from the District Court for Louisiana to the Supreme Court of the United States, Chief Justice Marshall in delivering the opinion of the court said “ that although the original suit was commenced by attachment, yet the defendant had personal notice of the suit, and afterwards appeared and took defense, so that, even supposing there was any objection to the proceeding by attachment, it was cured by-the appearance of the defendant and his litigating tlie suit.” (5 U. S. Cond. R., 34.) In Starbuck v. Murray. (5 Wend. R., 159,) Marcy, J., in delivering the opinion of the court, said: “If a citizen of one State should go to another to claim property seized on attachment, and subject the attaching creditors to costs and expenses, which in the due course of the proceedings should be adjudged to them by a court of competent authority, will it be pretended that lie could resist the payment of these costs on the ground that he was not subject to the jurisdiction of the court? For all the fair and direct objects of the suit he was within its jurisdiction. So if the proceedings were not in rem, but the property of the defendant was attached to compel him to appear and answer to tlie proceedings -in personam, and he did in fact appear and litígale the cause with the plaintiff, he could not be heard to question (he jurisdiction of the court over hi.s parson.” Referring to the case of Bissell v. Briggs, before cited, the judge remarks: “I do not think Chief Justice Parsons intended to say more than this, that where a court had jurisdiction of a defendant for one purpose, it could not legally bind him by a judgment or sentence in a distinct and different matter.” The authorities, indeed, are numerous to the effect that although personal notice of the suit be not served on the defendant, yet if he chooses to appear and contest the merits, thereby waiving his personal immunity and submitting to the jurisdiction of the court, the judgment will bind him personally and be entitled to the same respect, even in a foreign country, as if tlie process had been served upon the defendant and the judgment obtained in the ordinary mode. (2 Cow. & Hill’s Notes to Phil. Ev., 112, 113, and cases cited.)

We have been referred by the counsel for the appellant to the case of Rea v. Hayden, in tlie Supreme Court of Massachusetts, (3 Mass. R., 25.) where in a note.-by the reporter a case is stated said to have been decided in that court in 1793. It was an action between two alien friends upon a promise made in their own country, and brought in that State upon some properly of the defendant being found there. Upon the ease stated it is said to have been the opinion of the court that they had no jurisdiction of the action. This case differs from the present in that the cause of action arose abroad; and it does not appear that there was any seizure of the property by attachment or otherwise, or that the defendant was served with personal notice of the suit. The report of the case, however, is quite meagre and unsatisfactory. In a subsequent case, decided by the same court in 1819, (Barrell v. Benjamin, 15 Mass. R., 354,) a different doctrine appears to have maintained. The court refer to the above case, and say that “it does not appear that either the plaintiff or defendant was within this State when the action was brought. On the contrary it is to be inferred from the report that both were absent, and that the action was brought because some property of the defendant was found there. It cannot be inferred from this decision that if the defendant had been found within the jurisdiction of the court and arrested, the suit would have been dismissed.” (Id., 357.) The court proceed to notice two other cases stated in (he note to Rea v. Hayden, which have also been referred to in argument in this case, but which are too manifestly inapplicable to require comment. The doctrine in Massachusetts appears from this case lo be that one foreigner may sue another who is transiently within the. jurisdiction of (he courts of that State upon a contract made between them in a foreign country. And it was further held that a citizen of any other of the United States is not to be considered as a foreigu<u*iu that State.

Tiie case of Ward v. Lathrop. decided by this court at the December Term, 1819, differed essentially from the present. There, as we have heretofore had occasion to notice, (McMullen v. Guest.) there was neither person nor property alleged to be within the jurisdiction of the court.

In tiie view we have taken of this question it has not been deemed necessary to consider the propriety of the ruling of tiie court in quashing the attachment. The opinion we entertain of that ruling, however, is confirmatory of our opinion upon the question of jurisdiction.

,The attachment appears to have been quashed in consequence of the lapse of time from (he making of the affidavit to tiie issuing of the writ. In proceeding by attachment the several incipient steps should be as nearly contemporaneous as they conveniently may be, so that suspicion be not thrown upon t.lie fairness of the plaintiff's case. Less dispatch would seem necessary where the ground of the proceeding is that tiie defendant is not a resident of the State than where it is that he is about to remove beyond its limits. There should’not be such delayas to afford a presumption that tiie facts stated in the affidavit had ceased to .exist. This was tiie rule adopted in the case of Sydnor v. Chambers, (Dallam. 601.) In that case, however, it was said that no invariable rule upon tiie subject- can be laid down. It evidently must depend in a great degree upon.the special circumstances of eacli case. If in the present ease the; delay in issuing the writ had been such as to authorize (he inference that the facts stated in tiie affidavit had ceased to exist, or as to cast suspicion on the fairness and integrity of the proceeding, it would have afforded just cause for tiie judgment of the court quashing the attachment. Such, however, does not appear to have been the case, and we are of opinion that the record discloses no sufficient, legal reason for that judgment, and consequently that it was erroneous. But it was an error of which the appellant cannot complain. The court bad acquired jurisdiction of'the case by the attachment, and, before this judgment quashing it, it liad also acquired jurisdiction of the person of the defendant. Tints jurisdiction of both the person and property had attached and was rightfully exercised, and tiie subsequent quashing of the attachment did not deprive the court of its jurisdiction.

In every view of the case wo think it clear that jurisdiction in this instance was rightfully exercised.

The exceptions to the. petition were rightfully overruled. It is averred that the defendant has property within tiie j urisdictibn of the court, which is sought to be subjected to the payment of tiie debt by attachment, and there is shown to be a valid subsisting cause of action.

It remains to dispose of the objection to the rulings of the court in the instructions to the jury and in the admission of evidence.

The instructions relate to the liability of the defendant under the averments and proof in the case. It is insisted for the appellant that in order to hold the defendant responsible as drawer of the bill lie must have been sued as directed in tiie 1st section of the act of 1840, then in force, “to dispense with the necessity of protesting negotiable instruments,” &c. (Hart. Dig., p. 771.) And by tiie appellee it is insisted that tiie act, as it respects the remedy, is merely cumulative, and that the mercantile diligence of protest and notice is still sufficient.

There was in tiffs case no acceptance and no necessity for presentment for acceptance, the hill being, in legal contemplation, payable on demand. (Story on Bills, sees. 50, 228.) Presentment for payment alone was necessary. There was no one but the defendant liable on the paper, and no one to sue to fix his liability. Could it have been the intention of the statute to require the holder to sue the drawer himself, to affect him witli notice or the statutory diligence, and fix his liability? Is the statute applicable to a ease like the present, where there is no acceptance? If not, and the rights of the parties were to he governed by the commercial law in respect to protest and notice, the court did not err in so instructing the jiuy.

Note G8.—McMullen v. Guest, ante, 276.

Note (59.—Primrose v. Roden, 14 T., 1.

Note 70.—Pool v. Pickett. 8 T., 122; Burnley v. Cook, 13 T., 686.

Note 71.—Wright v. Ragland, 18 T., 289.

Note 72.—Cole v. Wintercost, 12 T., 118; Payne v. Patrick, 21 T., 680.

But if, as insisted for the appellant, it was necessary to sue the drawer himself to fix his liability under the statute, or if the statute as to him is to be regarded as a statute of limitations, it is to be observed that the plaintiff’s amended petition alleges that before the first term of the court after the cause of aeliCm accrued the defendant removed from the State, and the evidence established the truth of this averment; and moreover that he did not return 1o the State to reside until shortly after the commencement of the suit. If, then, the present is to be regarded as a question of statutory diligence, to charge the defendant as drawer of the bill it was a sufficient legal excuse for the want of it that tlie defendant had, by his own act, put it out of the power of the plaintiff to use the required diligence. But if the act is to be regarded as a statute of limitations, the time of the defendant’s absence from the country is to be excluded from the computation. (Hart. Dig., art. 2395.) The action was in time, and there was no error in the instructions iu this respect.

If protest and notice were necessary they were averred and shown, and enough was shown, moreover, to have dispensed with the necessity of notice by the principles of the law merchant. If the statute is to be regarded as applicable to this case the plaintiff has done all which by law lie can be required to llave done to fix tlie liability of the defendant aud to entitle him to recovery.

In any view of the case there is enough shown to establish the liability of the defendant., and the instructions respecting the manner in which it may have been fixed aud established are therefore immaterial.

The same may be said of the rulings of the court respecting the admissibility of evidence. The evidence adduced was either admissible or it was immaterial.

And in either view the rulings upon it can afford no ground for reversing the judgment.

We are of opinion that there is no error in the judgment, and that it be affirmed.

Judgment affirmed.  