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and, in fact, in 1855, the plaintiff availed itself | of this condition of things by bringing a suit against the defendant for a portion of the demand claimed under the contract now in controversy, recovered judgment and collected the same, and that, in fact, this suit was commenced by personal service of a summons upon the defendant's agent at Corning and that it is, therefore, apparent that the Tioga Company has been, at all times, subject to a suit at law for any debt it owed to the Blossburg Company or any other party; and yet it is said that the Statute of Limitations is no defense.

If these facts appeared as stated by the counsel, it could not avail the plaintiff in error. The courts of New York have decided (and two of the decisions were made upon the case of this very Company) that a foreign corporation cannot avail itself of the Statute of Limitations of that State.

Thompson v. R. Co., 36 Barb., 79; Olcott v. R. Co., 20 N. Y., 210.

And this, notwithstanding the defendant was the lessee of a railroad in New York, and had property within the State, and a managing agent residing and keeping an office of the Company at Elmira, within the State.

Rathbun v. R. Co., 50 N. Y. 656.

These decisions upon the construction of the statute are binding upon us, whatever we may think of their soundness on general principles. Harpending v. Dutch Church, 16 Pet., 493. 144*] *But the facts on which the plaintiff in error relies are not spread upon the record in such a manner that the court can take cognizance of them. They are not found specially by the referee; he refuses to find them. He finds generally in favor of the plaintiff, namely: that the Statute of Limitations was not a bar to the action. No error can be assigned upon such a finding.

The judgment is affirmed.

Mr. Justice Hunt, concurring in the decision:

The Blossburg Company claimed to recover in this action two thirds of all the receipts for transportation, under the tariff of rates, during the entire period of the running of the contract. The Tioga Company claimed to retain the difference resulting from the discrimination in the tariff of rates for short distances. The claim of the Blossburg Company was sustained in the court below. In a former suit upon the same contract, between the same parties, the Supreme Court and the Court of Appeals of the State of New York reached the same conclusion. That was an action to recover dam ages for the violation of the contract in question during the first years of its existence. The present action seeks to recover damages for violation of the same contract, occurring after the commencement of the former action.

The question whether, upon the merits, the plaintiff is entitled to recover, is no longer an open question. It was settled by the adjudication of the point by the highest courts of New York, in an action between the same parties and upon precisely the same facts. The record in the former suit was given in evidence in this suit, and is conclusive. Thompson v. Roberts, 24 How., 233, 16 L. ed., 648; Demarest

v. Darg, 32 N. Y., 281; Doty v. Brown, 4 N. Y., 71; 1 Greenl. Ev., sec. 531 and n. 2, p. 700. The point with which we are principally concerned at this time, arises upon the Statute of Limitations. This action was commenced on the 6th day of May, 1864, and it was insisted that all that part of the claim which became due on or before May 6, 1858, was barred by the Statute of Limitations of the State of New York. The court below held against this claim, but it is repeated and renewed on this appeal. The Civil Code of New York repeals the former laws on the subject of limitation of actions, and enacts as follows:

"Sec. 74. Civil actions can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, except where, in special cases, a different limitation is prescribed by statute.

Sec. 89. The periods prescribed in section 74 for the commencement of actions other than for the recovery of real property, shall be as follows:

Sec. 91. Within six years: 1. An action upon a contract, "obligation or liability, [*145 express or implied (excepting judgments and sealed instruments).

Sec. 100. If, when the cause of action shall accrue against any person, he shall be out of the State, such action may be commenced within the terms herein respectively limited after the return of such person into this State; and if, after such cause of action shall have accrued, such person shall depart from and reside out of this State, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action."

An examination of the statutes of the different States shows a great similarity in their provisions. They generally provide that if a person shall be out of the State when the cause of action accrues against him, the statute does not begin to run until he returns into the State; if, after the cause of action has accrued, such person shall depart from and reside out of the State, the time of his absence shall not be taken to be a part of the time limited for the commencement of the action. As to a resident of the State where the action is brought, his temporary absences after the cause of action shall have accrued, do not suspend the running of the statute. As to a non-resident debtor, however long his absence may be continued, he takes no benefit from the statute. Temporary returns do not put the statute in motion. So long as he continues to reside in another State, so long he is liable to an action in the State in which he is sued. These provisions are found in substance in the Statutes of Maine, Massachusetts, New Jersey, Vermont, New Hampshire, Michigan, Wisconsin, Arkansas, Oregon and Iowa.

The State of New York is not singular, therefore, in providing or in holding that, although a debtor may have been from time to time within the State, yet while he is a resident of another State and until he becomes a resident of New York, he cannot ask the protection of the Statute of Limitations.

It was proved and conceded that, during all the time of the existence of the contract in question, the defendant had property within the

State of New York, an office at Corning, | no evidence that a more perfect judgment was 146*] *New York, directors, officers and agents within the State; that it was at all times amenable to the process of its courts; and that, in 1855, the plaintiff availed itself of this condition of things to bring a suit against the defendant for a portion of the demand claimed under the contract now in controversy, and that the present suit was commenced by the service of a summons upon the defendant's agent at Corning, New York.

In 1848, the Code of New York authorized the commencement of a suit by the delivery of a copy of the summons to the defendant, and, if the suit was against a corporation, to the | president or other head of the corporation, secretary, cashier or managing agent thereof.

In 1851 this section was amended by adding thereto the words "but such service can be made, in respect to a foreign corporation, only when it has property within this State or the cause of action arose therein."

In 1859 this subdivision was further amend ed by adding, at the end, the words "or, where such service shall be made within the State, personally upon the president, treasurer or secretary thereof."

It would appear from this analysis that the Legislature intended to authorize the commencement of a suit against a corporation by the delivery of a summons to its president or other officer, without regard to the facts: 1, whether it was a domestic or a foreign corporation; or, 2, whether it had property within the State; or, 3, whether the cause of action arose within the State; or, 4, whether such service was made within this State or without the State. It amended the proceeding, first, by limiting this mode of commencing a suit against a foreign corporation to a case where it had property within this State or where the cause of action arose therein; and, second, by requiring such service to be made within this State.

In commenting upon these provisions, the counsel for the plaintiff in error says: "It is then apparent that ever since 1848, it has been in the power of any creditor of the Tioga Company to sue it in the courts of New York, and 147*] recover a *judgment against it as effectual and conclusive as any that could be obtained against any citizen or domestic corporation, for it has had, during all that time, property within the State and officers upon whom process could have been personally served; and in this case, the cause of action, if any, arose within the State of New York."

That a judgment could be obtained during that period is apparent, but that an effectual and conclusive judgment could be obtained by the service of a New York summons upon an officer of a Pennsylvania corporation in that State, as was authorized by the Code until the year 1859, is not so apparent. The process of the New York courts does not and cannot run beyond the territorial limits of that State. A service of such process within the State of Pennsylvania would be void. Picquet v. Swan, 5 Mas., 40; Story, Confl. L., sec. 539. The broad language used in these statutes justifies the construction given it by the New York courts, that they were intended to provide for a judgment not complete and effectual but limited and restricted like that obtained upon publication or by attachment proceedings. The statutes give

expected to be obtained where the service of the summons was made upon the officer within this State than when it was made without it. A suit was authorized to be commenced against a foreign corporation by any of these various modes, or by attachment and publication. In the latter case no pretense is made that the judgment is effectual and conclusive, and the fact that the cause of action arose within this State or that the Corporation had property within the State, can give but little addition to its conclusiveness. Such is the doctrine announced not only in Rathbun v. R. Co., 50 N. Y., 656, but in many previous cases.

In Hulburt v. Ins. Co., 4 How. Pr., 274; Brewster v. Mich. Cent. R. Co., 5 How., Pr., 183; Bank v. Rutland R. Co., 10 How. Pr., 1, it is held that a judgment obtained in a suit *commenced by the service of a summons [*148 upon an officer of a foreign corporation while in this State is not a personal judgment, that it can only be enforced against property in this State.

In Rathbun v. R. Co., supra, in delivering the unanimous opinion of the court, Folger, J., after citing the statutes upon the subject and discussing the decisions of the State heretofore made, bases the decision that the statute did not limit the action against the defendant in that suit upon the principal that the judgment to be obtained by service upon the officer of a foreign corporation would not be a full and perfect judgment prevalent against it in a State other than New York. The case as reported in the series does not contain the opinion, but a copy certified by the reporter has been handed us, and it is full and explicit upon the point now suggested.

The cases establish, that a corporation has its existence and domicil only within the jurisdiction of its origin, and that in its nature it is incapable of migration to another jurisdiction.

In The Bk. v. Earle, 13 Pet., 521, it was said: "The artificial person or legal entity known to the common law as a corporation, can have no legal existence out of the bounds of the sovereignty by which it is created, that it exists only in contemplation of law and by force of law, and where that law ceases to operate the corporation can have no existence. It must dwell in the place of its creation."

The same doctrine was reiterated and the above language quoted with approbation by Ch. J. Taney, in R. Co. v. Wheeler, 1 Black, 295, 17 L. ed., 133.

In Day v. India Rub. Manuf. Co., 1 Blatchf., 628, Mr. Justice Nelson held that a corporation of New Jersey, although it had a place for the store and sale of its goods in New York, was not an inhabitant of that city, and that it could have no corporate existence beyond the territory of *New Jersey. These principles have [*149 never been disturbed, although other doctrines contained in these cases in regard to the residence of a corporation, when plaintiff in an action, have been reconsidered.

It is also established in the courts of New York (Merrick v. Van Santvoord, 34 N. Y. 208) that a foreign corporation is a citizen of the State from which it obtains its charter, and that it is incapable of immigration. See, also, Stevens v. Ins. Co., 41 N. Y., 149, to the same purport.

We do not say that a corporation cannot run its cars in a State other than that where it is incorporated and where it is domiciled, nor that it cannot by its lawful agents make contracts and do other business in such State. We assume that it can. In doing these things it does not lose its residence in the former State nor become a resident of the latter. It still resides in the State where it is incorporated and does not depart therefrom.

We assume, also, that a foreign corporation may appoint an attorney to appear for it when sued in a foreign State, and that a judgment obtained against it, upon such appearance, would be perfect and complete. We are not aware that this proposition has ever been doubted. McGoon v. Scales, 9 Wall., 31, 32, 19 L. ed., 518: Chaffee v. Hayward, 20 How., 208, 15 L.

ed., 804.

The decisions of the courts of the State of New York upon the question before us, directly and in its collateral aspects, have been uniform and consistent. They all sustain the view we have taken, Burroughs v. Bloomer, 5 Den., 532, holding that the time spent by a person in this State while domiciled elsewhere, is not to be deemed as a part of the time required for the running of the statutes; McCord v. Woodhull, 27 How. Pr., 54, to the *same purport; [*151 Olcott v. R. Co., 20 N. Y., 210; Rathbun v. R. Co., supra, together with the cases already cited, showing that a judgment obtained by service of a summons upon the agent or officer of a foreign corporation is not personal and conclusive; and Blossburg R. Co. v. R. Co., 5 Blatchf., 387, in the Circuit Court of the United States, heretofore referred to, all tend to the same conclusions.

We have not been referred to a single decision of the New York courts in conflict with these authorities, nor are we aware of any. We are not at liberty to depart from this settled construction, were we inclined to do so.

Gelpcke v. Dubuque, 1 Wall., 175, 17 L. ed., 520; 1 Stat. at L., 92, note A.

There is nothing in the rulings upon the trial in regard to the admission or exclusion of evidence that requires our interference.

of Mr. Justice Hunt.
Mr. Justice Field concurred in the opinion

By section 100 of the New York Code, already quoted in full, the Statute of Limitations does not apply to the case of a person who shall be "out of the State when the cause of action shall accrue against him." If he "depart from and reside out of the State after such cause of action shall have accrued, the time of his absence shall not be taken as any part of the time limited for the commencement of such action." Although a natural person who has thus departed may return frequently and remain long, yet if his domicil continues in another State, the time of his non-residence forms no part of the time limited by the statute. Burroughs v. Bloomer, 5 Den., 532. It was legally impossible for the Tioga Railroad Company to depart from the State of Pennsylvania. Of course, it could not bring its residence into the State of New If the State Courts of New York have con150*] York. *It was resident out of the State strued their statute concerning service of procwhen the cause of action accrued against it, and ess to mean that no such service will authorhas ever since so continued. There is no limita-ize a judgment against a corporation of another tion of the time in which the action may be brought in such a case.

Statutes of Limitation are in their nature arbitrary. They rest upon no other foundation than the judgment of a State as to what will promote the interests of its citizens. Each determines such limits and imposes such restraints as it thinks proper.

In Angell on the Limitation of Actions at Law, at p. 14, sec. 24, the author says: "Under the 34th section of the Judiciary Act of 1789, 1 Stat. at L., 73, the Acts of Limitations of the several States, where no special provision has been made by Congress, form a rule of decision in the courts of the United States, and the same effect is given to them as is given' in the state courts. In accordance besides, to a steady course of decision for many years, the federal judiciary feel it an incumbent duty carefully to examine and ascertain if there be a settled construction by the state courts of the statutes of the respective States where they are exclusively in force, and to abide by and follow such construction when found to be settled. There is no unwritten or common law of the Union. The rule of action is found in the different States as it may have been adopted and modified by legislation and a course of judicial decisions. The rule of decision must be found in the local law, written or unwritten.

McCluny v. Silliman, 3 Pet., 270; Bk. v. Daniel, 12 Pet., 32; Harpending v. Dutch Church, 16 Pet., 455; Porterfield v. Clark, 2 Now.. 76.

Mr. Justice Miller, dissenting:

I dissent from that part of the opinion of the court which relates to the defense of the Statute of Limitations.

State, which will be valid beyond the limits of the State of New York, it is a most extraordinary and unnecessary decision, for it is the province of those other States, or of the federal judiciary, to declare the effect of such judg ment, outside of the State of New York. Besides it is not asserted that any such decision has ever been made, except with reference to its effect upon the right of such corporations to plead the Statute of Limitations in the state courts of New York. Nor do I believe that the courts of any State of the Union, except New York, have ever held that a person doing business within the State and liable at all times to be sued and served personally with [*152 process cannot avail himself of the Statute of Limitations, if the time prescribed by it to bar such action has elapsed before it was commenced. The liability to suit where process can at all times be served, must in the nature of things be the test of the running of the statute. A different rule applied to an individual because he is a citizen or resident of another State, is a violation at once of equal justice and of the rights conferred by the 2d section of the 4th article of the Federal Constitution, that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.

I can hardly believe, therefore, that the New York Statute means that of two men doing business in adjoining houses in the City of New York, one may avail himself of the statute of the State for the limitation of actions, when the

time prescribed has elapsed, because he is a citizen of that State, while the other cannot because he is a citizen of New Jersey, when each has been equally and always liable to service of process. Nor do I believe, on a review of all the cases, that the courts of New York have intended to give such a construction to those

statutes.

the plaintiffs be enjoined and restrained from ever claiming, suing for, or setting up any title to the said several tracts of land, or either of them, or any part or portion thereof, and that the pretended estate and interest of the plaintiffs be determined and wholly held for naught. *Leave was granted to the plaintiffs [*155 by the court to file a reply, and they did so, as more fully appears in the record, in which they

My brother Strong agrees with me in these controvert each and every of the material alviews.

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Mr. Justice Clifford delivered the opinion of the court:

Fee simple title is claimed by the present defendants to the several tracts of land described in the declaration, and they commenced an action of ejectment to recover the possession of the same, and for the rents and profits, and for the value of certain timber which, as they allege, the defendants have cut thereon and converted to their own use.

Eight other persons besides the present plaintiff were joined as defendants in the suit, and they were all duly served with process and appeared and made defense in the first district court of the State where the writ was returnable.

Two defenses were set up, as follows: (1) They, the defendants, denied every allegation and averment of the declaration. (2) They pleaded that the title to the several tracts of land was in William A. Simpson; that he acquired the same in the manner and by the means circumstantially set forth in their second plea, and that the other defendants are in the possession of the said several tracts as tenants of the said Simpson, and have large and valuable crops growing thereon, and that they hold the same by lease from the actual owner of the title. Wherefore they, the defendants, pray and demand judgment against the plaintiffs, and that

NOTE.-Parties in error, who necessary-see note to Owings v. Kincannon, 8 L. ed. U. S. 727.

legations of the answer, except that the defendants are in the possession of the premises, and allege that the principal defendant acquired the possession by wrongful and unlawful means, and re-assert their claim of title, as set forth in the declaration. Subsequently the parties waived a jury and went to trial before the court. Evidence was introduced on both sides, and the court made numerous findings of fact and several conclusions of law. Certain exceptions were also taken both to the rulings and the findings of the court.

Some delay followed, and both parties having been fully heard the court rendered judg ment as follows: "That the plaintiffs have and recover of and from said defendants the lands and tenements described in the declaration. That they also have and recover of the said William A. Simpson the sum of $4,300, the value of the rents, issues and profits of said lands and tenements, and for the timber taken from said land by the said defendant. the plaintiffs also have and recover of the other defendants the sum of $2,600, to be credited as part of the said $4,300, if collected, it being the value of the rents above found."

That

Judgment was signed on the 15th of November, 1870, and on the following day the defendant, William A. Simpson, filed a petition in error and a transcript of the record in the clerk's office of the Supreme Court of the State, in which he represents that the other defendants, naming each, will not consent to join in the petition, but the record shows that all the other defendants, on the 12th of January following, filed a petition in error in the Supreme Court, praying that the judgment rendered in the subordinate court should be reversed for the reasons stated in the petition of the first petitioner.

Due notice was given, by a summons issued under the first petition, to the original plaintiffs and all of the defendants except the first petitioner, that the first petitioner had filed such a petition and a transcript of the record in the clerk's office of the State Supreme [*156 Court, but all of the persons named as defendants in the original writ are also named as such in the summons issued by the clerk of the State Supreme Court. Service of the summons was duly acknowledged by the original plaintiffs and by all of the eight defendants who did not sign the first petition in error. Seasonable entry of the case was made in the Supreme Court of the State, and the parties having been fully heard the said Supreme Court affirmed the decree of the subordinate court and sent down their mandate commanding the subordinate court to cause execution to be had of the said judgment of the said Supreme Court, according

to law.

Early application was made by the present

plaintiff to the clerk of the Circuit Court of the United States for that district for a writ of error, under the 25th section of the Judiciary Act, to remove the cause into this court, and the record shows that it was duly issued and that it was properly allowed by the Chief Justice of the State Supreme Court.

Errors of a material character are assigned by the plaintiff as reasons for the reversal of the judgment rendered in the state courts, but it is necessary in the first place to examine the objection taken by the defendants to the jurisdiction of this court, as that objection presents a preliminary question which, if decided in favor of the defendants, will dispose of the case. They, the defendants, insist that the writ of error should be dismissed because one only of the nine defendants in the court below is made a party in the writ as issued by the clerk of the circuit court, and because only one of the number has given bond to prosecute the writ of error with effect, as required by the Act of Congress in such case made and provided.

by the judgment, the rule is universal, that all must join in the writ of error, else it is open to the other *party to demand that it be [*158 dismissed, unless a severance of the parties in interest has been effected by summons and severance, or by some equivalent action appearing in the record. Smyth v. Strader, 12 How., 327; Davenport v. Fletcher, 16 How., 142; Wilson v. Ins. Co., 12 Pet., 140; O'Dowd v. Russell, 14 Wall., 402, 20 L. ed., 857; Deneale v. Stump, 8 Pet., 526.

Apply that rule to the present case, and it is clear that the writ of error must be dismissed, as one only of the nine defendants in the original suit is named in the writ of error; nor is there anything in the record to take the case out of the operation of the general rule, as the plaintiffs in the court below have recovered judgment for the several tracts of land described in the declaration, against all of the defendants therein joined. Separate judgment for the damages and the whole of the rents and profits is rendered against the present plaintiff; but the court also rendered judgment against the other eight defendants for the amount of the rents and profits, to be credited to the other defendant when collected, which shows that each defendant is interested in every part of the judgment.

Viewed in the light of these suggestions, it is quite clear that the writ of error in this case must be dismissed, as all the defendants are directly or indirectly affected by the judgment in respect to the damages and rents, issues and profits, as well as the judgment that the title to the lands described in the declaration is in the present defendants. Such a controversy cannot be properly re-examined here by instalments, nor unless all the parties to be affected by the result are before the court.

Writ of error dismissed.

Mr. Justice Bradley did not sit during the decision. argument of this cause, and took no part in its

Where there was a joint judgment against several and one only of the defendants sued out a writ of error, without joining the others, it was decided by this court, Marshall, Ch. J., giving the opinion, that it was irregular, and 157*] the court dismissed the writ of error. Williams v. Bk., 11 Wheat., 414. Subsequently the same rule was applied in a case where the cause was removed into this court by appeal, the opinion of the court being also given by the Chief Justice. Owings v. Kincannon, 7 Pet., 402. Reference was made in the opinion in that case to the former decision, but the court, not relying merely on authority, decided that it was correct as matter of principle that the whole cause ought to be brought before the court at the same time, and that all the parties united in interest ought to unite in the appeal, as appeals are subject to the same rules, regulations and restrictions as are prescribed by law in case of writs of error. Since those decisions were published, the question has frequently been presented to this court, and has uniformly been determined in the same way, where it appeared that the interest was joint and that no severance had been effected either in the judgment or by subsequent summons and severance or by some proceeding of an equivalent character. Masterson v. Herndon, 10 Wall., 416, 19 L. ed., 953; Hampton v. Rouse, 13 Wall., 187, 20 L. ed., 593. Undoubtedly, those cases show what the general rule is, but it is equally well established, where some of the parties in interest refuse to join in the writ of error or appeal, that the others are entitled to resort to the process and proceeding of summons and severance to enable them effectually to remove the cause from the subordinate court into the appellate tribunal | 744. for re-examination. Todd v. Daniel, 16 Pet., 745. 523. Cases arise, beyond all doubt, where only 740. one of several defendants is affected by the judg-746. ment or decree, and it is well settled that in such cases the party whose interest only is affected by the alleged error may carry up the case without joining the others in the appeal or writ of error. Forgay v. Conrad, 6 How., 203; Germain v. Mason, 12 Wall., 261, 20 L. ed., 392; Cox v. U. S., 6 Pet., 182. Exceptional cases of the kind occasionally arise, but where the interest is joint and the interest of all is affected

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