Page:Federal Reporter, 1st Series, Volume 3.djvu/799

 792 ' FEDERAL EBPOETBE. �The language of the statuts is that it shall not be lawful for any plaintiff to sue any defendant out of the county where the latter resides or may be found, except in local actions, and except that in personal actions, at law, when there is more than one defendant, the plaintiff eommencing his action where either of them resides may have his writ issued directed to another county. �It will be observed that the statute, in the last clause, leaves out the words "or may be found," which existed in the first ; and the question is whether it was intended to exclude the court from jurisdiction of the case where one of the defendants was found in the county, although he did not reside there. I can hardly think that this is the true con- struction of the statute. For the purposes which the law had in view, it may he said, I think, that wherever the defendant was found and served with process, he might be considered, as to the action, to be there a resident. Clearly, although he might be a resident, it would be indispensable that he should be found and served there; which could not be done unless he was personally in the county. Again, the authorities of this state seem to imply, if there is any objection to the form of the action, where parties reside and are served in different counties, that it is incumle.it on the defendants to take advantage of the defect before judgment, by bringing the mat- ter, in which the objection consiste, to the notice of the court. Nothing of that kind was done here, and so I think the court had jurisdiction of the cause, and the judgment must be con- sidered as operative upon the bankrupts. �As to the other objection : �The supreme court of the United States bas decided in sev- eral cases that it is competent for a crediter to iiistitute a suit against a bankrupt, andobtain judgment by default, and issue execution, and unless the bankrupt does some act by which he bas participated in some way in the act of the creditor, the preference thereby acquired is a valid preference as against other creditors. �It is true, the supreme court bas said that it is sufficient if ����