
    Capron v. Van Noorden.
    
      Absence of jurisdiction.
    
    
      A plaintiff may assign for error, the want of jurisdiction in that court to which he has chosen to resort.
    A party may take advantage of an error in his favor, if it be an error of the court.
    The courts of the United States have not jurisdiction, unless the record shows that the parties are citizens of different states, or that one is an alien, &c.
    Eeeob to the Circuit Court of North Carolina. The proceedings stated Van Noorden to be late of Pitt county, but did not allege Capron, the plaintiff, to be an alien, nor a citizen of any state, nor the place of his residence. ,
    
      Upon the general issue, in an action of trespass on the case, a verdict was found for the defendant, Yan Noorden, upon which judgment was rendered.
    The writ of error was sued out by Capron, the plaintiff below, who assigned for error, among other things, first, “that the circuit court aforesaid is a court of limited jurisdiction, and that by the record aforesaid it doth not appear, as it ought to have done, that either the said George Capron, or the said Hadrianus Yan Noorden, was an alien, at the time of the commencement of said suit, or at any other time, or that one of the said parties was, at that, or any other time, a citizen of the state of North Carolina where the suit was brought, and the other a citizen of another state; or that they, the said George and Hadrianus were, for any cause whatever, persons within the jurisdiction of the said court, and capable of suing and being sued there.” *And secondly, “that by the record aforesaid, it manifestly appeareth, that the said circuit court had not any jurisdiction of the cause aforesaid, nor ought to have held plea thereof, or given judgment therein, but ought to have dismissed the same, whereas, the said court hath proceeded to final judgment therein.”
    
      Harper, for the plaintiff in error,
    stated the only question to be, whether the plaintiff had a right to assign for error, the want of jurisdiction in that court to which he had chosen to resort ?
    It is true, as a general rule, that a man cannot reverse a judgment for error in process, or delay, unless he can show that the error was to his disadvantage ; but it is also a rule, that he may reverse a judgment for an error of the court, even though it be for his advantage. As, if a verdict be found for the debt, damages and costs, and the judgment be only for the debt and damages, the defendant may assign for error that the judgment was not also for costs, although the error is for his advantage.
    Here, it was the duty of the court to see that they had jurisdiction, for the consent of parties could not give it. It is, therefore, an error of the court, and the plaintiff has a right to take advantage of it. 2 Bac. Abr. tit. Error, K. 4 ; Beecher's Case, 8 Co. 59 a; 1 Roll. Abr. 759 ; Moore 692 ; Bernard v. Bernard, 1 Lev. 289.
   The defendant in error did not appear, but the citation having been duly served, the judgment was reversed.  