dence there was hardly room for argument or doubt. There was no real question that the cotton was handed over at once and not in the exercise of the stipulated right after twenty four hours, that no directions about delivery were given to the compress company, and that the persons handling the cotton at El Dorado thought that it belonged to the Alphin & Lake Cotton Company or acted as if it did. Both sides asked the judge to direct a verdict and evidently regarded the questions as mainly questions of law. While it may be that the judge would not have felt technically justified in directing the jury to find for the plaintiff, but for his views on the effect of the statute, the Supreme Court seems to have thought the facts indisputable, and stated them categorically with no hint of hesitation or doubt.

Whether the Supreme Court was warranted in assuming the facts to be as it set them forth is no concern of ours. The important thing is that it was at pains to state them, and that it can have had no purpose in doing so other than to establish a liability under the contract at common law. If the statute imposed liability for delivery without a surrender of the bills. of lading, whether the contract was performed or not, there was no need to go into these details. It is true that the court refers to and upholds the statute, but it does so after stating the duties and liabilities of the carrier at common law, and says more than once that the relevant enactment is for the enforcement of duties already existing; that is, it would seem, that it is only declaratory so far as this case is concerned. The court treats the contract itself as requiring a delivery to shipper's order, and only upon a production of the bills of lading properly indorsed. Its concluding words are, "under the contract as shown by the bills of lading it was relieved of liability on account of the storage, but not of the failure to deliver according to law." Whether the analysis of the contract was correct or not, and whether or not there were other grounds of common law upon which the defendant ought to have escaped, are matters upon which we cannot speculate. When we see

207 U.S.

Argument for Plaintiff in Error.

that the opinion of the court upon the constitutional question first appearing in that opinion was not necessary to its judgment upon the case we have nothing more to do.

Writ of error dismissed.

PATCH v. WABASH RAILROAD COMPANY.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF ILLINOIS.

No. 57. Argued November 15, 1907.-Decided December 2, 1907.

The certificate of a judge of the Circuit Court that the judgment is based solely on jurisdictional grounds is an act of record and quare whether it stands on any different ground from judgments and the like when the term has passed, and whether it can then be amended so as to show that it was signed inadvertently and by mistake and to certify that the question of jurisdiction was not passed on and that the decision was based on another ground. Such a mistake is not clerical.

The provision in a state statute that no non-resident shall be appointed or act as administrator or executor does not open the appointment of a nonresident to collateral attack in an action brought by him so as to deprive him of his right to file a plea that the case cannot be removed to the Federal court.

A corporation incorporated simultaneously and freely in several States exists in each State by virtue of the laws of that State and when it incurs a liability under the laws of one of the States in which it is incorporated and is sued therein it cannot escape the jurisdiction thereof and remove to the Federal court on the ground that as it is also incorporated in the other States it is not a citizen of that State. Southern Railway v. Allison, 190 U. S. 326 and other cases, holding that where the corporation originally incorporated in one State was compelled to become a corporation of another State so as to exercise its powers therein, distinguished.

THE facts are stated in the opinion.

Mr. George C. Otto for plaintiff in error:

The jurisdiction of the court was in issue. Rhode Island v. Massachusetts, 12 Pet. 657, at 718-720; Capron v. Van Noorden, 2 Cr. 126; Brown v. Keene, 8 Pet. 112; M. C. & L. M. Ry. Co. v.

1

Argument for Plaintiff in Error.

207 U.S.

Swan, 111 U. S. 379, at 382; Morris v. Gilmer, 129 U. S. 315; Wetmore v. Rymer, 169 U. S. 115; People v. Seelye, 146 Illinois, 189; Bassick Mining Co. v. Schoolfield, 10 Colorado, 46; United States v. Arrendondo, 6 Pet. 691, 709; Grignon's Lessee v. Astor, 2 How. 319, 338; Dred Scott v. Sandford, 19 How. 393, 427; Interior Construction Co. v. Gibney, 160 U. S. 217.

The defendant was a citizen and resident (1) of Illinois (the State in which the suit was brought) and, also (2) of each of the States of Missouri, Indiana, Michigan and Ohio. Ashley v. Ryan, 49 Ohio St. 504 (1892); Ashley v. Ryan, 153 U. S. 436 (1893); Westheider v. Wabash R. R. Co., 115 Fed. Rep. 840 (1892); Winn et al. v. Wabash R. R. Co., 118 Fed. Rep. 55; Sheppard et al. v. Graves, 14 How. 505, at 510; Chitty on Pleading, Ch. VI, Tit. I; Stephen on Pleading (Tyler's ed.), 84; Bacon Ab., Abatement; C. & N. W. Ry. Co. v. Ohle, 117 U. S. 123; Jones et al. v. League, 18 How. 76, 81; 18 U. S. Stat. at L. 472; St. Louis & S. F. Ry. Co. v. James, 161 U. S. 545; Louisville R. R. Co. v. Letson, 2 How. 497, 558; Bank of Augusta v. Earle, 13 Pet. 512; Marshall v. B. & O. R. R. Co., 16 How. 314, 328; Railroad Co. v. Harris, 12 Wall. 65, 68; Covington Draw Bridge Co. v. Shepherd et al., 20 How. 227; Southern Ry. Co. v. Allison, 190 U. S. 326; Ohio & M. R. Co. v. Wheeler, 1 Black, 286, at 295, 296; Phila. & Wilm. R. R. Co. v. Maryland, 10 How. 376, 392; Lafayette Ins. Co. v. French, 18 How. 404; Paul v. Virginia, 8 Wall. 168, 181; Shields v. Ohio, 95 U. S. 319; Atlantic & G. R. Co. v. Georgia, 98 U. S. 359; Railway Co. v. Berry, 113 U. S. 465; Railway Co. v. Miller, 114 U. S. 176; Keokuk & W. R. Co. v. Missouri, 152 U. S. 301; State v. Keokuk & W. Ry. Co., 99 Missouri, 30; Evans v. Railway Co., 106 Missouri, 601; State v. Leuseur, 145 Missouri, 322; McMahon v. Morrison, 16 Indiana, 172; Walters v. Railroad Co., 104 Fed. Rep. 377; Pac. Ry. Co. v. Mo. Pac. Ry. Co., 23 Fed. Rep. 565; Uphoff v. Chi. &c. R. Co., 5 Fed. Rep. 545; Fitzgerald v. Mo. Pac. Ry. Co., 45 Fed. Rep. 812; Johnson v. W. & B. R. Co., 9 Fed. Rep. 6; Anderson v. Watt, 138 U. S. 694, 701; Louisville &c. R. Co. v. Louisville Trust Co., 174 U. S. 552; Farnham v. Canal

207 U. S.

'Argument for Defendant in Error.

Co., 1 Sumner, 47; Mower v. Kemp, 42 La. Ann. 1007; R. & M. R. Co. v. Farmers' L. & T. Co., 49 Illinois, 331; C. & N. W. Ry. Co. v. Auditor Gen., 53 Michigan, 79, 91; Market St. R. Co. v. Hellman, 109 California, 571; B. & O. R. Co. v. P. W. & Ky. R. Co., 17 W Va. 812; Henen, Admr. v. B. & O. R. Co., 17 W. Va. 882; Whitton, Admr. v. C. & N. W. Ry. Co., 13 Wall. 270; Muller v. Dows, 94 U. S. 444.

Mr. Frederic D. McKenney, with whom Mr. Wells H. Blodgett was on the brief, for defendant in error:

For the purposes of jurisdiction of the courts of the United States, domicile is the test of citizenship; and in a jurisdictional sense the words "citizen" and "domicile" are synonymous. Poppenhauser v. Comb Co., 14 Fed. Rep. 707; McDonald v. Flour Mill Co., 31 Fed. Rep. 577; Collins v. City of Ashland, 112 Fed. Rep. 175; Morris v. Gilmer, 129 U. S. 315; Anderson v. Watts, 138 U. S. 694; Sun Printing and Publishing Company v. Edwards, 194 U. S. 377.

The word "resident" as used in the last proviso to § 18, chap. 3, of the Administration Statutes of Illinois as amended by the act of 1905 (Laws of Illinois, 1905, p. 2) is synonymous with domicile. In re Mulford, 217 Illinois, 242; McDaniel v. King, 5 Cush. 469; Strongton v. Cambridge, 165 Massachusetts, 251; Oliviere v. Atkinson, 168 Massachusetts, 28; Harmon v. Grizard, 89 N. Car. 115; Ryall v. Kennedy, 67 N. Y. 379.

The allegation of plaintiff in error in his plea in abatement to the defendant's removal petition, that "before and at the time of the commencement of this action this plaintiff was and still is a citizen of Ohio," is equivalent, in legal effect to an allegation that the domicile of plaintiff was at the time in the State of Ohio, and hence that he was at the time a non-resident of Illinois.

No question of collateral attack on the judgment of the Probate Court of Cook county, Illinois, appointing plaintiff in error administrator de bonis non of Maxon's estate, properly arises on this record. The sole question is whether plaintiff in

error, by his allegation of his citizenship in Ohio, affirmatively showed on the face of the record, his want of legal capacity to institute this suit or file any plea herein, under the prohibitions of § 18, chap. 3, of the Administration Statutes of Illinois, as amended by the act of 1905, which provides that no nonresident of this State shall be appointed or act as administrator or executor.

Plaintiff's plea in abatement to defendant's removal petition is insufficient.

MR. JUSTICE HOLMES delivered the opinion of the court.

This was an action brought by the plaintiff in error to recover for the death of his intestate in a collision upon the defendant's railroad in Illinois. The action was begun in a court of the State and the defendants forthwith filed a petition for the removal of the cause to the United States Circuit Court. The petition averred, among other things, that the defendant was a corporation organized under the laws of Ohio and a citizen of that State, and was not a resident of Illinois, and that the plaintiff was a citizen and resident of Illinois. The removal was ordered and completed. Thereupon the plaintiff filed in the United States Court a plea, in which he alleged that the defendant was a corporation organized and existing under and by virtue of the laws of Illinois, Missouri, Indiana, Michigan and Ohio, by the consolidation of five other corporations, severally created by the laws of those States respectively, that the defendant was a citizen of and resident in Illinois and each of said other States, and that the plaintiff was a citizen of Ohio; and the plaintiff prayed judgment whether the court could take cognizance of the action.

general issue to Upon a hearing

The defendant, after having pleaded the the action, demurred to the plaintiff's plea. the demurrer was sustained, and the plaintiff, electing to stand by his plea, a judgment was entered that the defendant recover its costs. The plaintiff prayed a writ of error, and the Judge