others within the United States, or who are brought there for trial for alleged offenses committed abroad, and has no operation in another country although the trial of the accused may be had in a foreign country before a tribunal created by and acting under the laws of the United States, and under treaty with such foreign country.'

The trial and commitment of one who has already been tried and acquitted of the same offense is depriving him. of his liberty without due process of law.2

The states have the power to change the procedure, and the remedy, and the courts to which resort may be had to enforce one's rights; and such changes, made after the cause of action arose, do not, unless they deprive a party of some substantial right already vested, deprive him of due process of law. So new rules of evidence, that do not destroy or affect vested interests, may be established.

A statute depriving a party of the right to transmit his property by inheritance deprives him of his property without due process of law.5

A statute authorizing one who has made improvements in the channel of a river to charge tolls for the use of the river thus improved, is not an imposition of a tax upon persons using the river or a taking of their property without due process of law."

Nor does the prohibition of the manufacture of intoxicating liquors, or any other article or commodity which has the effect to render the property of one engaged in

1 Ross v. McIntyre, 140 U. S. 453; 11 Sup. Ct. Rep. 897.

2 Ex parte Ulrich, 42 Fed. Rep. 587.

3 State v. Jackson, 105 Mo. 196; 16 S. W. Rep. 829; Cooley's Const. Lim., p. 272; Caldwell v. State, 28 Tex. App. 566; 14 S. W. Rep. 122; Rowan v. State, 30 Wis. 129, 144; 11 Am. Rep. 559; Wolf v. State, 19 Ohio St. 248, 254; Louisville, N. A. & C. Ry. Co. v. Wallace, 26 N. E. Rep. 493.

4

People v. Ryder, 12 N. Y. Sup. 48; 58 Hun, 407; People v. Eddy, Id. 628; 59 Hun, 615.

5 Debrell v. Morris, 15 S. W. Rep. 87.

Sands v. Manistee River Imp. Co., 123 U. S. 228; 8 Sup. Ct. Rep.

such manufacture useless, or less valuable, amount to a taking of such property without due process of law.'

34. APPEARANCE AND ITS EFFECTS.-Appearance is the coming into court as a party to a suit either in person or by attorney or other person authorized to enter or make such appearance.2

It may be general, which is a submission of the person to the jurisdiction of the court for all purposes of the action, or special, for the purpose of questioning the jurisdiction of the court, which submits the person to the jurisdiction of the court, only so far as to authorize it to rule upon the question raised, whether it be presented by motion or by pleading to the jurisdiction.*

It may also be either voluntary, where it is entered freely, compulsory, where it is compelled by plaintiff's action, or optional, where it is made by one not called upon to appear, but who applies to do so to save a right.5

An appearance may be in person, by attorney, by next friend, by guardian, or by committee, depending upon whether the party himself defends, or employs, or is represented by, another.5

A party enters a general appearance when he enters the same on the records of the court, or causes it to be done, without qualifying the appearance, or limiting it to a purpose for which a special appearance is permitted, or by entering bail, demurrer, answer to the merits, or any other act admitting that the party is in court submitting to the jurisdiction."

'Mugler v. Kansas, 123 U. S. 623; 8 Sup. Ct. Rep. 273; Powell v. Pennsylvania, 127 U. S. 678; 8 Sup. Ct. Rep. 992, 1257.

'Anderson's Dic. of Law, 65; ante, sec. 13. 3 Ante, secs. 13, 22. 'Ante, secs. 13, 22; Kinkade v. Myers, 17 Or. 470; 21 Pac. Rep. 557; Williamson v. McCormick, 126 Pa. St. 274; 17 Atl. Rep. 591.

'Anderson's Dic. of Law, 65.

Anderson's Dic. of Law, 65; Grantier v. Rosecrance, 27 Wis. 488, 491; German Mut., etc., Fire Ins. Co. v. Decker, 74 Wis. 556; 43 N. W. Rep. 500; Lyons v. Planters' Loan and Savings Bank, 86 Ga. 485; 12 S. E. Rep. 882.

So where a party consents to the making of an order by the court. But in order to constitute an appearance the act must be done in court. The filing of a motion out of term time, and never brought before the court, is not an appearance. And it must be the act of the party or his attorney. An entry by the clerk that some act has been done that would constitute an appearance may be evidence of the fact, but it is not the act itself.3

Whether an appearance for the removal of a cause from a state court to a federal court is such an appearance as will give jurisdiction and waive want of, or defects in, service, is left in uncertainty by the decisions of the federal courts. It was held under the twelfth section of the judiciary act of 1789 that by petitioning for a removal the defendant waived service of process.

Under the later removal acts it is held in some of the cases that a party does not, by appearing specially in the state court for that purpose, and filing his petition and bond for removal, cut off his right to contest the sufficiency of the service in the federal court.

In others, it is held that the party must, in order to save his right to contest the service, or the jurisdiction of the court for want of service, first make his objection in the state court before asking for the removal, and if he does not his appearance and petitioning for such removal waives the objection.

With the authorities in this uncertain state it is impossible to say what conclusion will be finally reached. It seems to be settled, however, that if the objection to the service is properly made in the state court, a subsequent

1

1 Auspach v. Ferguson, 71 Ia. 144; 32 N. W. Rep. 249.

2 Todd v. De La Mott, 9 Col. 222; 11 Pac. Rep. 90.

3 Rhoades v. Delaney, 50 Ind. 468; 1 Black on Judg., sec. 225.

4 Sayles v. Insurance Co., 2 Curt. 212; Bushnell v. Kennedy, 9 Wall.

387; Reifsnider v. American Imp. Pub. Co., 45 Fed. 433.

5 Atchison v. Morris, 11 Fed. Rep. 582; Small v. Montgomery 17 Fed. Rep. 865; Reifsinder v. American Imp. Pub. Co., 45 Fed. Rep. 433, and cases cited; Clews v. Woodstock Iron Co., 44 Fed. Rep. 31; Hendrickson v. Railroad Co., 22 Fed. Rep. 569; Perkins v. Hendryx, 40 Fed. Rep. 657. Tallman v. Baltimore & O. R. Co., 45 Fed. Rep. 156, and cases cited.

application for removal will not deprive the party of the right to renew it in the federal court.' It was held in one case that a formal appearance by a defendant in a federal court, entered on the first rule day, followed on the second rule day by an objection that he was sued in the wrong district, was not, under the circumstances, such an appearance as would waive service of process. But the doctrine laid down in this case has been expressly repudiated, with the statement that with the exception of that case no authority in support of it is found in the decisions of the federal courts. A party may, in a proper case, be permitted to amend his notice of appearance so as to change it from a general to a special appearance. Where a motion which attacks the jurisdiction of the court over the person, made upon a special appearance for that purpose, is pending, and the party pleads to the merits, or does any other act that amounts to a general appearance, his pending objection to the jurisdiction of the court is waived." And the subsequent withdrawal of such pleading does not affect the question. The filing of the pleading vests the court with jurisdiction, and it can not be taken away by withdrawing the pleading, although done with the leave of the court. A party may, by his conduct, be estopped to deny that he is or was in court. Not only is the want of proper service of process waived by a general appearance, but the objection that the party is not within the territorial jurisdiction of the court in a transitory action is waived in the same way. In some states it is so provided

'Kauffman v. Kennedy, 25 Fed. Rep. 785; Miner v. Markham, 28 Fed. Rep. 387; Hendrickson v. Chicago, R. I. & P. Ry. Co., 22 Fed. Rep. 569.

'Reinstadler v. Reeves, 33 Fed. Rep. 308.

3 Foote v. Massachusetts Ben. Ass'n, 39 Fed. Rep. 23.

'Hohorst v. Hamburg, etc., Packet Co., 38 Fed. Rep. 273.

Evans v. Iles, 7 Ohio St. 234; Denver & R. G. Ry. Co. v. Neis, 10

'Corinne, etc., Co. v. Johnston, 5 Utah, 147; 13 Pac. Rep. 17. 'Auspach v. Ferguson, 71 Ia. 144; 32 N. W. Rep. 249; Friezen v. Allemania F. Ins. Co., 30 Fed. Rep. 349; Foote v. Massachusetts Ben.

by statute. It is otherwise if the jurisdiction of the subject-matter depends upon whether the property is within the territorial jurisdiction of the court or not, as, in that case, the question would be as to the jurisdiction of the subject-matter, and not of the person; and consent, by an appearance, would not give jurisdiction. But it is held that the right to have a cause affecting title to real estate tried in the county in which the land is situated is a mere privilege that may be waived. And sometimes service of process within the territorial jurisdiction of the court is necessary to give it jurisdiction of the subject-matter. In such case jurisdiction can not be given by an appearance.3 The objection that the cause has not been transferred to the court in such way as to give it jurisdiction is waived by an appearance. A special appearance is made by making some motion, or filing some pleading, the effect of which is to deny or contest the fact that the party is in court, and contesting its jurisdiction over his person." In making a special appearance, the purpose of such appearance must be stated, and it must be confined and limited to jurisdictional matters."

But under the codes of some of the states the question may be raised by answer, and the effect is the same as if raised by plea or motion. Therefore, if a party pleads to the jurisdiction of the court over his person, but at the

Ass'n, 39 Fed. Rep. 23; Jones v. Andrews, 10 Wall. 327; Atkins v. Fiber Disintergration Co., 18 Wall. 272; Donnelly v. Woolsey, 59 Hun. 618; 13 N. Y. Sup. 433.

1 Goldstein v. City of New Orleans, 38 Fed. Rep. 626.

2 Ante, sec. 22; Walker v. Stroud, 6 S. W. Rep. 202; Hazard v. Wason, 152 Mass. 268; 25 N. E. Rep. 465.

3 Wheelock v. Lee, 74 N. Y. 495; McCarty v. Parker, 14 N. Y. Sup. 128.

1 Hazard v. Wason, 152 Mass. 268; 25

N. E. Rep. 465; Hamrick v. Danville, etc., Gravel R. Co., 32 Ind. 347; Cox r. Pruitt, 25 Ind. 90.

5

· Ante, secs. 13, 22; Green v. Green, 42 Kan. 654; 22 Pac. Rep. 730; Kinkade v. Meyers, 17 Or. 470; 21 Pac. Rep. 557.

6

Ante, secs. 13, 22; Grantier v. Rosecrance, 27 Wis. 488, 491; Kinkade

v. Meyers, 17 Or. 470; 21 Pac. Rep. 557; Bucklin v. Strickler, 48 N. W. Rep. 371.

' Harkinson v. Page, 31 Fed. Rep. 184.