Before SIMONTON, Circuit Judge, and JACKSON and PURNELL, District Judges.

JACKSON, District Judge. This is an action brought by the defendant in error against the plaintiff in error to recover damages growing out of a collision which occurred on the 11th day of April, 1897, between the trains of the defendant company, near Harrisburg, N. C., whereby it is claimed that the plaintiff, who was a passenger on one of the trains, was greatly injured and damaged. It is not denied that the collision took place at the time and place alleged in the plaintiff's complaint, in the state of North Carolina; that the plaintiff in the action was greatly injured thereby; and that by reason of that fact he instituted his suit in the state of North Carolina to recover damages because of the alleged injuries.

The bringing of the suit by the plaintiff in the state of North Carolina is an admission upon the part of the plaintiff that the defendant corporation was doing business in, and was to be found in, that state; otherwise there would be no jurisdiction over the defendant corporation, either in the federal or state courts. In this action it is to be noticed that upon the trial of this case the court below took judicial notice of the fact that the defendant corporation, as such, was a citizen of the state of North Carolina, and was operating within the boundaries of that state about 1,200 miles of railroad.

This action was brought on the 18th day of September, 1900, as appears from the date of the summons, which, by the provisions of section 161 of the Code of North Carolina, is the date when an action is commenced. To this action the defendant railroad company interposed a plea of the statute of limitations, which is the only question presented in the record of this case for the consideration of the court; and the assignment of error is that the court below erred in holding that the cause of action of the defendant in error was not barred by the statute of limitations of the state of North Carolina, to which ruling of the court below the plaintiff in error filed an exception.

The Southern Railway Company, though a foreign corporation, was nevertheless a citizen of the state of North Carolina at the time of the collision,—at least, so far as the rights of any citizen interested in a claim or demand against it. It was a legal entity, and as such represented the rights of the corporators, and had the same legal power as a natural person either to assert or defend its rights. This principle of law is so well established at this date that we deem it unnecessary to cite authorities to support it.

The claim of the plaintiff below is that the defendant corporation was not to be found in the state of North Carolina, so that process could be served upon it, and, under section 162 of the Code of North Carolina, the statute of limitations does not bar a recovery on this action. The facts in this case show that the defendant company was at the time of the accident doing business in the state of North Carolina, and that it has so continued to do up to the date of the said summons, and in fact ever since, and up to the trial of the case. The plaintiff concedes by his action that the defend

ant company was at the time of the institution of this suit doing business in the state of North Carolina, otherwise he could not have maintained his action in this form. It clearly appears that the status of the defendant company in the state of North Carolina at the time of the accident was the same as at the commencement of the action. If this is true, then the defendant company, although a foreign corporation, was engaged in running its trains over its railroad, and was to be found within the limits of the state, for more than three years after the collision, and prior to the institution of this action. This is an action for damages to the person of the plaintiff, and it is well settled that an action of this character can be maintained wherever the wrongdoer is found. In this case the wrongdoer, as it is claimed by the plaintiff, is the defendant company, which was operating a railroad in the state of North Carolina; and the accident by which the plaintiff was damaged occurring in that state, and he having elected to bring his action in North Carolina, his rights must be determined by the laws of that state.

It is claimed by the plaintiff that, by section 162 of the Code of North Carolina, the defendant company cannot rely upon the plea of the statute of limitations (which is three years) to defeat the action, for the reason that the limitation had not begun to run before the commencement of the action. Section 162 of the Code of North Carolina provides that:

"If when the cause of action accrue, or judgment be rendered, or docketed against any person, he shall be out of the state, such action may be commenced, or judgment enforced, within the time, herein respectively limited. after the return of such person, into this state, and if, after such cause of action shall have accrued, or judgment rendered or docketed, such person shall depart from, and reside out of the state, or remain continuously absent therefrom, for the space of one year or more, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action, or the enforcement of such judgment."

It will be observed that the statute relied upon has no application to the facts in this case. In the first place, the defendant below was not at any time within the three years after the accident and before the commencement of this suit out of the state; and, in the second place, it did not depart or reside out of the state, or remain continuously absent, for the space of one year or more. Neither provision of the statute has any application to the facts of this case; for said facts show conclusively that the defendant corporation ever since it commenced doing business in the state of North Carolina has had a local abode and habitation in that state, for more than three years prior to the institution of this action. The defendant company is, within the provisions of the fourteenth amendment of the constitution of the United States, a person, having all the rights that a natural person may have in actions for or against it. Assuming this position to be true, we reach the conclusion that the defendant corporation is entitled to rely upon the statute as a defense to this action, and that more than three years had elapsed before the suit was commenced.

For the reasons assigned, we are of the opinion that the court below erred in overruling the plea of the statute of limitations, and that the case should be reversed. Reversed.

(113 Fed. 87.)

LYMAN et al. v. WARNER et al.

(Circuit Court of Appeals, Fourth Circuit. February 4, 1902.)

No. 420.

1. LIMITATIONS-PARTIAL PAYMENT-ACKNOWLEDGMENT.

Payment of interest on a note within three years prior to action thereon is an acknowledgment of indebtedness, taking it out of the bar of the statute.

2. CONTINUANCE-DISCRETION-REVIEW.

Refusal to grant continuance cannot be reviewed, in the absence of a showing of abuse of discretion.

3. NOTE-ENFORCEMENT BY PURCHASER.

A purchaser of a note for a valuable consideration may enforce its collection, though there was no indorsement or transfer of it.

In Error to the Circuit Court of the United States for the Western District of North Carolina, at Asheville.

Charles Price (F. A. Sondley, on the brief), for plaintiffs in error. James H. Merrimon and Walter B. Gwyn (J. Gibbon Merrimon, on the brief), for defendants in error.

Before SIMONTON, Circuit Judge, and JACKSON and PURNELL, District Judges.

JACKSON, District Judge. The defendants in error (the plaintiffs low) instituted their action against the plaintiffs in error (the defendants below), and alleged in their complaint that on the 19th day of October, 1894, A. H. Lyman and C. E. Lyman, defendants below, made and executed their promissory note, in writing, dated the 19th day of October, 1894, payable one year after date; that afterwards Mary E. Blakemore, to whom the note was executed, made and delivered the said note to B. F. Whitman, who likewise indorsed and delivered the same to Cornelia Blakemore Warner, for value, who was the owner and holder of the said note at the commencement of this action, no part of which has been paid to the plaintiffs. The defendants, A. H. Lyman and C. E. Lyman, filed their separate answers, in which they admit the execution of the note, but deny that Cornelia Blakemore Warner was at the time of the institution of this suit the holder and the owner of the note; and they also deny that there is anything due and owing by the defendants to her, and insist that the plaintiffs have no right to maintain this action, for the reason that no legal assignment or transfer of the note was ever made by Mary E. Blakemore to her. The defendants below also suggest, as a matter of defense, that the action is barred, for the reason that the right of action against them did not accrue within three years before the commencement of this suit. The first answer to this position is that this was a question of fact, which was submitted to a jury, and they found against the defendants. The second answer is that the defendants paid the interest on this note up to April 19, 1898, within three years prior to the institution of this action. This payment of interest was an acknowledgment of the debt, and an implied promise to pay

it. 19 Am. & Eng. Enc. Law (2d Ed.) 327, and the cases there cited. In North Carolina, from which state this case comes, it was held in the case of Hewlett v. Schenck, 82 N. C. 234, quoted in Bank v. Harris, 96 N. C. 118, 1 S. E. 459, that "a partial payment, though the evidence need not be in writing, being an act, and not a mere declaration, revives the liability, because it is deemed a recognition of it, and an assumption anew of the balance." As the plaintiffs in error do not appear to rely upon this defense in their briefs, and have not assigned or complained of it as an error in the proceedings of the court below, we dismiss it without further consideration.

Nine grounds have been assigned by the plaintiffs in error for the consideration of this court:

In the first assignment of errors it is claimed by the appellants that the court below erred in refusing a motion of the defendants to continue the cause, and directing the case to proceed to trial at that time. A motion for the continuance of a cause, addressed to the trial judge, is a matter that always rests in the sound discretion of the court, and is subject to review only for the abuse of his discretion. This was the rule at common law, and, so far as we are aware, the courts of this country have usually followed that rule. The supreme court of the United States, in Woods v. Young, 4 Cranch, 237, 2 L. Ed. 607, ruled "that the refusal of the court below to continue the case could not be assigned for error." This court has in all of its subsequent decisions followed that case, and as late as the case of Means v. Bank, 146 U. S. 621, 13 Sup. Ct. 186, 36 L. Ed. 1107, held that "the question whether a trial shall be postponed on account of the absence of a witness for the defendant, and the illness of one of his counsel, is a matter of sound discretion, and will not be reviewed where no abuse is shown." See, also, 4 Enc. Pl. & Prac. 901, § 2, and notes I and 2. As the record in this case does not disclose that the trial judge abused his discretion in refusing a continuance of this case, we are of the opinion there was no error in overruling the motion.

The eight remaining assignments of error involve substantially the same question, and rest upon the fact, as is claimed by the defendants, that the plaintiffs had no right of action for the recovery of the amount of the note upon which this action was founded. It seems to us that a very brief review and discussion of the evidence in this case must dispose of the last eight assignments of error. The evidence taken in this case was all offered by the plaintiffs below, there being no evidence offered by the defendants. What the evidence of the plaintiffs proves and what it tends to establish must be accepted as the undisputed evidence in this case upon which the right of action depends. The evidence discloses that the two Lymans, the defendants below, borrowed from Mary E. Blakemore $3.000, payable one year after date; that when the note matured they did not pay it, but they paid the interest for some years on the note, and they finally ceased to pay the interest when they were called upon to pay the note. Some negotiations were had in reference to it. Miss Blakemore, the holder of the note, seems to

have been in bad health. She gave instructions to Whitman to try and secure the payment of the note. In this Whitman failed. After the failure, the plaintiff in the action below, Cornelia Blakemore Warner, discovered that her sister was very much worried in not securing the payment of the interest, took the matter in hand, and went to Mr. Whitman and made arrangements with him to take up the note and pay it off, and held it as her own property. It appears from the evidence that B. F. Whitman, a cashier of a bank in Cleveland, and acting as an intermediary between Mary E. Blakemore, the payee and holder of the note, and the defendants, the two Lymans, made to the defendants, for Miss Blakemore, a loan of $3,000 for one year, for which they gave their joint note, upon which this action is founded; that when the note fell due it was not paid, nor was it renewed, but remained unsatisfied up to the date of the commencement of this action, though the interest was paid to April 19, 1898. It further appears that Mary E. Blakemore was in bad health, and the neglect of the obligors to pay off and discharge this obligation seemed to prey on her mind,-so much so that her sister, the plaintiff in this action, became so anxious about her sister Mary's condition that she determined to see what could be done to relieve her sister's anxiety. With this in view, she went to Mr. Whitman, the cashier. After some discussion between them, it was decided that he was to procure from Miss Blakemore the note and all the papers relating to the loan. In doing so he informed her that "arrangements had been made for the refunding of the loan." It is true that the loan was not refunded, but it is equally true that Miss Blakemore was desirous of getting the amount due her on the note paid. The note had been in the custody of Mr. Whitman for collection, for it was sent to him at Asheville for that purpose, which he failed to accomplish. When Miss Blakemore sent the note to him, she had, by her own proper indorsement, transferred the note to him, and he became vested with the legal title to it. It is true that after the note was indorsed he returned the note to her; but it is equally true that when she returned the note to him the second time the indorsement remained on the note unaltered, and by her action at that time he became the legal owner of the note, and could have maintained the action in his own name for the recovery of the amount due. After he got possession of the note the second time, he sold it to Mrs. Warner, the plaintiff in this action, for value, realizing the full amount due on the note. Upon this state of facts the defendants claim and insist that Mrs. Warner cannot maintain this action, and that she had no legal title to the note. We do not think that this defense to this action is either good in ethics or sound in law. The note was payable to the order of the payee, and was therefore negotiable. The payee, by proper indorsement, had assigned and transferred the note to Whitman; and he, having possession of the note, transferred it, by his own proper indorsement without recourse, to the plaintiffs in this action. This case was tried before a jury, and the jury found for the plaintiffs, presumably under the direction of the court, as was decided in Thompson v. Onley, 96 N. C. 9, 1 S. E. 620,