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railway in Indiana entering into an agreement with a railway in Michigan to allow them to build and operate their road under their charter. Another railway company in Indiana, claiming that their rights were being infringed, filed a bill in equity in the United States District Court for the district of Michigan, to enjoin the company in that state, who were proceeding under the contract without making the other party to the contract a party to the bill. The Circuit Court upon hearing dismissed the bill, and the Supreme Court affirmed the decree. The Supreme Court held also, that the other party to the agreement was a necessary party to the bill.

4. In a suit in Indiana, in the Circuit Court of the United States, between the same parties, it was held that a corporation is not amenable to process except in the state where its business is done.1 A corporation in Indiana cannot sue, in that state, a corporation doing business in the State of Michigan. Where the See Wheeden v. Cam. and Amboy Railw., 2 Philadelphia R. 23; s. c. 1 Grant's Cases, 420. It is here held, that though a corporation is not per se a citizen within the meaning of the Constitution of the United States, yet when sued, if its governing officers, who are the substantial parties, are citizens of the state which created the corporation, and the other party is a citizen of another state, the federal courts have jurisdiction, and the suit is removable under the act of 1789, called the judiciary act.

And see Ohio & Mississippi Railw. v. Wheeler, 1 Black (U. S.), 286. It is held in this case, that if all the members of a corporation are citizens of one state, it may maintain a suit in the federal courts against a citizen of another state; that the presumption is that all the members of a corporation are citizens of the state which created it; and that no averment to the contrary will be heard for the purpose of withdrawing the suit from the jurisdiction of the court. But it is also held in this case, that a corporation chartered in two states cannot have the same legal being in both; they are two separate corporations, and cannot unite to sue a citizen of either state. And the Supreme Court of Indiana lately held that a corporation, created by a special charter from the state of Indiana, in which the corporation is made to consist of certain directors and their successors, with power to construct a railroad in said state, and in connection therewith to own and manage certain property in the state of Ohio, could not, by reason of such authority, change its domicile to the latter state. Aspinwall v. Ohio & Mississippi Railw., 20 Ind. R. 492. And see, as to foreign corporations, Boley v. Ohio Life Ins. & Trust Co., 12 Ohio St. 139; Sprague v. Hartford, Providence, & Fishkill Railw., 5 Rhode Island R. 233. See, as to jurisdiction of state courts over matters pending in the federal courts, Ohio & Miss. Railw. v. Fitch, 20 Ind. R. 498.

subject is essentially local, the action must be brought in the state where the injury is done.5

5. It has been held that an insurance company, chartered by one state and having its principal place of business there, is to be regarded as a citizen of that state, for the purpose of maintaining suits or being sued in the Circuit Courts of the United States.4

6. But it was also held, in this case, that a judgment recovered against such company in another state, by service of process upon an agent of the company doing business there, on behalf of the company, and who was permitted so to transact such business, by consent of the legislature of that state, upon condition that service of process upon such agent should be regarded as service upon the company, was a valid judgment, and entitled to the same consideration in the state where the company was located as in the state where rendered.

SECTION II.

Liability for doing an Act prohibited by the Company's Charter, without Special Damage to the Party interested.

§ 256. Where the owner of a ferry across the river Mersey was protected in his rights by a section in the special act of a railway, prohibiting the company from extending their road across the river until certain other works were finished, it was held that he might maintain an action against the railway company, for violating such provisions of their act which were obviously inserted for his protection only, and not with any reference to the public interests, without showing the special damage he had thereby sustained.1

Northern Ind. Railw. v. Mich. Cent. Railw., 5 McLean's C. C. 444. also Woolsey v. Dodge, 6 Id. 142.

See

Lafayette Insurance Co. v. French, 18 How. 404. In a recent case before the House of Lords, the question was determined that an English railway company may be sued in Scotland by process of foreign attachment. London & Northwestern Railw. v. Lindsay, 30 Law Times, 357.

1 Chamberlaine v. Chester Railway, 1 Exch. R. 870.

SECTION III.

Mode of reckoning Time.

1. Difference between that of England and America.

§ 257. 1. By the English statute twenty-one days are allowed the shareholders, after notice of the making of calls, in which to make payment. This means twenty-one clear days, exclusive of the first and last days. But it is questionable whether the same construction would be applied to a similar provision in this country, unless the terms of the statute were very explicit in that direction. The more common mode in this country, in reckoning time specified in a statute, is to exclude the day from which the period is reckoned, and to include the day of its accomplishment.2

SECTION IV.

Service of Process upon Companies.

$258. Where a statute provided that, unless the company designated some agent, within certain precincts, upon whom service might be made, it should be competent to summon the com pany, by service upon any officer, superintendent, or managing agent of the company within the precinct, and service was made upon the freight agent of the company, it was held competent for the company to defeat the service and the jurisdiction of the court, by showing that they had a director within the precinct, upon whom service should have been made.1

1 In re Jennings, 1 Irish Eq. (N. s.) 236; Hodges, 107. Bigelow v. Wilson, 1 Pick. 485, opinion of Wilde, J.

1 Wheeler v. New York & Harlem Railw., 24 Barb. 414; Ante, § 255, n. 5. In Iowa, a railway company may be sued in any county through which its road passes, or in which its corporate powers are exercised. Richardson v. Burlington & Mo. River Railw., 8 Iowa R. 260. Big Land Iron Co., 13 Ohio St. 563. by statute in the different states.

For the practice in Ohio, see Fee v. These matters are generally regulated Dixon v. Hannibal and St. Joseph Railw.,

31 Missouri R. 409; Farnsworth v. Terre Haute, Alton, & St. Louis Railw., 29 Id. 75; Sprague v. Hartford, Providence, & Fishkill Railw., 5 Rhode Island R. 233; Sullivan v. La Crosse & Minn. Packet Co., 10 Minn. R. 386; New Albany & Salem Railw. v. Tilton, 12 Ind. R. 3; Ohio & Miss. Railw. v. Boyd, 16 Ind. R. 438; Peoria Ins. Co. v. Warner, 28 Ill. R. 429. In Conn. Mutual Life Ins. Co. v. C. C. & C. Railw., 41 Barb. 9, it was held, that where bonds and coupons, though executed in the state of Ohio, were payable in the state of New York, the cause of action arose in the latter state, and its courts would have jurisdiction, even though both parties might be foreign corporations. 41 Barb. 9. And see Harris v. Som. & Ken. Railw., 47 Maine R. 298. See Taft v. Mills, 5 Rhode Island R. 393. Service of summons on a travelling agent of an insurance company, or upon one authorized only to effect insurance, is not a valid service upon the company; Parke v. Commonwealth Ins. Co., 44 Penn. St. 422. See Kennard v. Railroad, 1 Wallace, Philadelphia R. 41; Ohio & Mississippi Railw. v. Quier, 16 Ind. R. 440. As to the English practice, see Unity General Assurance Association in re, 11 W. R. 355; London & Westminster Wine Co. in re, 9 Jur. N. S. 1102; National Credit & Exchange Co. in re, 7 L. T. N. S. 817; Keynsham Blue Lias Lime Co. v. Baker, 2 H. & C. 729.

CHAPTER XL.

PLEADING.

SECTION I.

Declaration. - Motion in Arrest.

§ 259. It is not intended to give even an outline of the pleadings in actions affecting railways. That would carry us quite too far into the general subject of pleading, which is now falling into disregard, if not into disrepute, in this country, and in regard to which, like everything else here, and everywhere more or less, there is no backward step.

But we have deemed a brief reference to some of the more practical points decided, since railways have engrossed so much of the business of the country, in relation to the necessary forms of pleading, as not unworthy of notice.

It has been held, that in a declaration for injuries to animals, the general allegation that the plaintiff's animal was upon defendants' road, and there negligently and carelessly run over and killed by their train, is sufficient. And that such declaration is good, after verdict, even although it may have appeared on trial that the negligence of defendants consisted in defect of fences, and not in the management of the train; that questions of variance between the declaration and proof should have been taken on trial, and cannot be raised in arrest of judgment; that judgment will not be arrested after verdict, for any defect in the pleading which might be fatal on demurrer, if, from the pleadings and the course of the trial, as shown by the exceptions, it is manifest that the requisite facts, defectively stated or omitted in the pleadings, were proved on trial; and that it is not necessary to allege that plaintiff was without fault.1

Indebitatus assumpsit is a proper form of action to recover money due upon subscription to stock in a railway.2

1 Smith v. Eastern Railw., 35 New H. R. 356; Oldfield v. N. Y. & Harlem Railw., 4 Kernan, 310.

Peake v. Wabash Railw., 18 Ill. R. 88.

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