effect to the retention in § 50 of the words "found within the district," we must, although these words were omitted from 51, hold that where there are several defendants the court has jurisdiction of all, if one or more are residents of the district and the others are found there. The argument overlooks the fact that § 50 is applicable not only to cases in which the venue is dependent upon the residence of a defendant in the district where suit is brought, but also to those cases in which it is dependent upon the residence of the plaintiff. Ordinarily jurisdiction could be obtained in the district of the plaintiff's residence only over nonresidents; because all of the defendants must be nonresidents in order to satisfy the requirement of diversity of citizenship. And as to these there can be personal jurisdiction only so far as found within or voluntarily appearing within the district. To such persons the term "inhabitants" in § 50 obviously cannot refer. If the provision therein concerning those not "found" had been omitted, a suit would fail in case any one of those who at common law was a necessary party defendant should not be found therein or voluntarily appear. Shields v. Barrow, 17 How. 130. As the Act of 1887-1888 did not restrict jurisdiction based on diversity of citizenship in those cases where the venue is determined by the residence of the plaintiff, it was appropriate to retain in the earlier statute (now §50) the words "found within the district," although it had ceased to be operative in cases where the venue is determined by the residence of the defendants.

On the other hand, § 52 of the Judicial Code makes it clear that the construction contended for by defendant is unsound. It provides that where a State contains more than one district a suit (not of a local nature) against a single defendant must be brought in the district where he resides, "but if there are two or more defendants, residing in different districts of the State, it may be

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brought in either district." We thus have an express declaration by Congress that under one particular set of circumstances a co-defendant may be sued in a district in which he does not reside. Expressio unius est exclusio alterius. This section follows directly after that which contains the general prohibition against suing a defendant in a district other than that in which he or the plaintiff resides, and constitutes one of the specified exceptions to the general prohibition. It shows, therefore, that the prohibition of § 51 expresses the deliberate purpose of Congress that a person shall not be compelled to submit to suit in the federal District Court in a State within which neither he nor the plaintiff resides, although a co-defendant may reside therein. The history of § 52 confirms this conclusion. It is substantially a reënactment of § 740 of the Revised Statutes. After the passage of the Act of 1887-1888 restricting the jurisdiction of the federal courts, considerable doubt arose as to whether the provisions of that act now contained in § 51 of the Judicial Code did not repeal § 740 of the Revised Statutes. Compare Petri v. Creelman Lumber Co., 199 U. S. 487.1 Congress reënacted in the Judicial Code this provision expressly permitting, in States having more than one district, all defendants resident within the State to be sued in any district thereof in which one of them resides; while it made no similar provision for the case where the several defendants reside in different States. If Congress, in reënacting the provisions of § 51, had intended that it should establish a rule with reference to defendants resident in different States contrary to the construction placed by the overwhelming weight of authority upon

1 See also Doscher v. United States Pipe Line Co., 185 Fed. Rep. 959; John D. Park & Sons Co. v. Bruen, 133 Fed. Rep. 806; New Jersey Steel & Iron Co. v. Chormann, 105 Fed. Rep. 532; Goddard v. Mailler, 80 Fed. Rep. 422; East Tennessee, V. & G. R. Co. v. Atlanta & F. R. Co., 49 Fed. Rep. 608.

the identical provision contained in the earlier statute, it would have expressed that intention in unmistakable language.

No reason appears, therefore, for refusing to apply here the rule of Smith v. Lyon, supra. The objection made below that the plea to the jurisdiction is bad because not limited by its terms to the question of jurisdiction over the particular defendant is highly technical, and was hardly insisted upon here; and the contention that his exemption from suit was waived by the acknowledgment on the summons of service is clearly unfounded. John M. Camp properly asserted his privilege by plea to the jurisdiction, and the plea should have been sustained. It follows that the judgment against him is void; that the judgment of the Circuit Court of Appeals, in so far as it affirms the judgment of the District Court against him, should be reversed; and the suit should be dismissed as to him.

Second. The plea to the jurisdiction filed by P. D. and P. R. Camp was properly overruled. The objection was based wholly on the fact that John M. Camp was not suable within the district. This is an exemption from suit personal to the nonresident of the district. A resident co-defendant cannot avail himself of the objection.1 If John M. had been an indispensable party, the failure to obtain jurisdiction over him would, of course, be fatal to the maintenance of the suit. Barney v. Baltimore City, 6 Wall. 280. But he was not an indispensable party; and under § 50 of the Judicial Code the trial court might, if it had sustained John M.'s plea to the jurisdiction, have rendered judgment against the other two defend

1 Tice v. Hurley, 145 Fed. Rep. 391, 392; Chesapeake & O. Coal Agency Co. v. Fire Creek Coal & Coke Co., 119 Fed. Rep. 942; Smith v. Atchison, T. & S. F. R. Co., 64 Fed. Rep. 1, 2; Jewett v. Bradford Sav. Bank & Trust Co., 45 Fed. Rep. 801; Bensinger Self-Adding Cash Register Co. v. National Cash Register Co., 42 Fed. Rep. 81, 82.

ants; for this is an action on a joint contract, and one of the several joint-contractors is not an indispensable party defendant in such a suit. Clearwater v. Meredith, 21 How. 489.

Third. P. D. Camp and P. R. Camp contend that, in view of the error in overruling John M. Camp's plea to the jurisdiction and proceeding to judgment against him, the court may not confine its action to correcting the error by setting aside the judgment and dismissing the suit as to him, but must set aside the judgment as against all the defendants, thus requiring a new trial as against the other two. But this is not a necessary result of erroneously retaining jurisdiction over John M. Camp; for, as above shown, John M. was not an indispensable party to a suit to enforce the liability of the other two joint obligors; and if the trial court had sustained his plea to the jurisdiction, the suit might, under § 50 of the Judicial Code, have proceeded to judgment as against the other defendants. Whether the error committed in retaining jurisdiction over John M. requires a reversal of the judgment as against the other defendants depends upon whether that error may have prejudiced them. The record does not show that the error committed could have prejudiced them in any way; and their counsel admitted at the bar that the error had not prevented them from availing themselves of any defense, and had not influenced the admission or rejection of evidence, or the granting or refusal of any instruction asked or given. Only error which may have resulted in prejudice could justify reversal of a judgment. Compare Yazoo & Mississippi Valley R. R. Co. v. Mullins, 249 U. S. 531.

It is, however, contended that the Virginia practice would require a reversal of the judgment as against all defendants, and that the Conformity Act (Revised Statutes, 914) requires that the state practice be followed. If such were the Virginia practice, which is denied, it

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would not be binding on this court. The Conformity Act by its express terms refers only to proceedings in District (and formerly Circuit) Courts and has no application to appellate proceedings either in this court or in the Circuit Court of Appeals. Such proceedings are governed entirely by the acts of Congress, the common law, and the ancient English statutes. United States v. King, 7 How. 833, 844; Boogher v. Insurance Co., 103 U. S. 90, 95; Chateaugay Ore & Iron Co., Petitioner, 128 U. S. 544; St. Clair v. United States, 154 U. S. 134, 153; Francisco v. Chicago & A. R. Co., 149 Fed. Rep. 354, 358-359; United States v. Illinois Surety Co., 226 Fed. Rep. 653, 664. In cases coming from federal courts the Supreme Court is given by statute full power to enter such judgment or order as the nature of the appeal or writ of error (or certiorari, § 240 of the Judicial Code) requires. Revised Statutes, § 701. Circuit Court of Appeals Act of March 3, 1891, c. 517, § 11, 26 Stat. 826, 829. See also § 10 of the same act. Compare Ballew v. United States, 160 U. S. 187, 198, et seq. And by Act of February 26, 1919, c. 48, 40 Stat. 1181, amending § 269 of the Judicial Code, the duty is especially enjoined of giving judgment in appellate proceedings "without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties."

The error in retaining jurisdiction over John M. Camp, does not, therefore, require that the judgment as against the other two defendants be set aside.

Fourth. P. D. and P. R. Camp contend, however, that the judgment against them should be reversed also on the ground that there was error in the instructions as to the measure of damages. The contention must be examined, as the whole case is here on writ of certiorari and the objection was properly saved. Lutcher & Moore Lumber Co. v. Knight, 217 U. S. 257, 267; Delk v. St. Louis & San Francisco R. R. Co., 220 U. S. 580, 588.