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rights, and at the same time not offend the referee. out satisfaction or execution, is a sufficient bar to an A referee to whom a case was sent informed the action against the other for the same cause. The parties at the first sitting, that his fees would be $5 | leading cases on this subject are Brown v. Wootten, per hour, and that he would not try the case for the Yelv. 67; King v. Hoare, 13 M. & W. 494; Brinsstatutory fee. The counsel for one of the parties mead v. Harrison, L. R., 6 C. P. 584. Sec, also, as said he had not authority to agree to such a com- supporting the application of the same rule to inpensation, but would for that sitting pay as required struments of release, Lovejoy v. Murray, supra : out of his own pocket. At the next sitting the Coke's Littleton, 232; Cocke v. Jennor, Hob. 66: counsel said he had been directed to consent to no Ruble v. Turner, 2 . & Mun. 38; Gilpatrick v. more than the statutory fee. The referee said his | Hunter, 24 Me. 18; Thurman v. Wild, 11 Ad. & El. charge would be $5 per hour, and that he should 453. The principle is that when the plaintiff has hold the prevailing party for that rate, and retain accepted satisfaction in full for the injury done him, his report as security. The counsel thereupon re- from whatever source it may come, he is so far fused to go on, and moved at Special Term for the affected in equity and good conscience that the law vacation of the order of reference, and the appoint- will not permit him to recover again for the same ment of another referee, which motion was denied. | damages. And as a consideration is always implied An appeal has been taken to the General Term of in a release under seal, a release by deed of one the Common Pleas, where the case has just been joint trespasser will release all. See, also, Ellis v. argued.

Bitzer, 2 Ohio, 89; Kiffin v. Willis, 4 Mod. 380. The Court of Appeals has reversed the judgment

In the case of State to the use of Allen v. Pittsburg, of the General Term in the famous “Shaker Seed

etc., Railroad Co., 45 Md. 41, the action was for Case,” White v, Miller, reported below, 7 Hun, 427.

death by negligence, and was brought in Maryland, There are numerous interesting points involved in

under the provisions of a statute which gives a the case, but the decision of the court of last resort

right of action by the State for the use of the widow is based upon questions relating to the admission of

and child of a person whose death shall be caused evidence.

by the wrongful act, neglect or default of another,

"and the act, neglect or default is such as would, NOTES OF CASES.

if death had not ensued, have entitled the party inIn the case of Gunther v. Lee, 45 Md. 60, an action jured to maintain an action and recover damages in I was brought against Lee and two other persons respect thereof." The defendant was a corporation as joint tort-feasors. Pending the suit the plaintiff operating a railroad lying partly in Pennsylvania and executed to Lee a release under seal, in which it was partly in Maryland, and was chartered by the laws declared that it was not to prejudice or impair of both States, and the deceased, who resided in plaintiff's claim against the other two defendants. Maryland, and was employed by it, was killed by The release was executed in consideration of five an accident occurring in Pennsylvania. The court hundred dollars, and in terms released and dis-, held that the statute did not apply to the case of a charged Lee from all claims of every description for wrongful act or neglect occurring in another State, damages accruing or accrued by reason of the and that it was immaterial that the deceased was a wrongs complained of, the plaintiff thereby ac- citizen of Maryland at the time of his death. The knowledging himself “to be fully paid and satis- ground of the decision was, that the statute in quesfied for all and singular the trespasses complained tion had no extra-territorial force. In this the case of” by him in the suit then pending against the

| accords with decisions in several of the States based defendants jointly. The court held that the release

upon similar statutes. See Whitford v. Panama

Railroad Co., 23 N. Y. 465, 484; Vandeventer v. N. inured to the benefit of all the defendants, and was

Y. & N. H. Ruilroad Co., 27 Barb. 244; Crowley v. a bar to the action; and further, that the proviso in Panama Railroad Co., 30 id. 99; Woodward v. M. S. the release by which the right to recover for the

& N. I. Railroad Co., 20 Ohio St. 121; Richardson

V. N. Y. C. Railroad Co., 98 Mass. 85; Needham v. same injury against the defendants other than Lee

| G. T. Railway Co., 38 Vt. 294; G. W. Railway Co. was attempted to be reserved to the plaintiff was

v. Miller, 19 Mich. 305. The case of Northern Cent. simply void, being repugnant to the legal effect and | Railway Co. v. Scholl, 16 Md. 331, which was claimed operation of the release itself. In the decision of by plaintiff to afford a precedent for sustaining the this case the court apply to the agreement of release

action, was held to be distinguishable from this

case, on the ground that the wrong there complained the same rule as obtains when a judgment is recov

of was in violation of a right that the wrong-doer ered against one tort-feasor and is satisfied. In was bound to respect everywhere within the limits such a case no action is maintainable against the of the United States. But the statute in question others. Livingston v. Bishop, 1 Johns. 290; Lovejoy

giving a new right not merely a new remedy, acts

committed in contravention of it beyond the jurisv. Murray, 3 Wall. 1. The rule in England goes

diction of the State were not made tortious and acstill farther, and holds that a judgment in an action tionable thereby. See Blake v. Midland Railway against one of two joint tort-feasors of itself, with-' Co., 10 Eng. L. & Eq. 443.

hole

| have no operation in another State save through THE CITIZENSHIP OF CORPORATIONS.

that comity which is part of the law of nations. BY SAMUEL T. SPEAR, D. D.

3. That though all the corporators are citizens of CORPORATIONS or bodies corporate are in so the State which created the corporation, the artiU mont respecto analogous to natural persons that ficial being created by the charter cannot claim the for certain purposes they are deemed to be persons. / rights of the corporators, as citizens of the United They are known by specific names, have a local States, to make contracts in other States. 4. That, habitation within the limits of the sovereignty that while a corporation can exist only within the limits created them, and may there exercise the powers and of the sovereignty that created it, it may act clseassert the rights vested in them. They can acquire, where through agents if the laws of other countries hold and dispose of property; they can make con permit. 5. That, by the law of comity among tracts; they can sue and be sued; and, though nations, corporations created by one sovereignty are plural in membership, they can, nevertheless, act as permitted to make contracts in another, and to sue if they were single individuals. Being created by in its courts, and that this law prevails among the law, they are subject to its regulation. They are several sovereignties of this Unior, subject at any aggregates of natural persons, holding such rela time to be modified at their pleasure. tions to each other and to the general public that a These propositions are equivalent to a rejection of perpetual succession of many persons is legally re- the theory set up by the Bank of Augusta with refgarded as one and the same person.

erence to the constitutional clause in question. It is on the ground of these facts that a corpora Chief Justice Taney, in stating the opinion of the tion, to the full extent necessary to the exercise of court, said that the theory would "give the citiits powers, the maintenance of its rights, and the zens of other States far higher and greater privenforcement of its obligations, is deemed to be a ileges than are enjoyed by citizens of the State itself. citizen of the State within whose jurisdiction it has Besides, it would deprive every State of all control its domicile. The rights of an individual citizen over the extent of corporate franchises proper to be are not superior to those of a corporation; and in granted in the State; and corporations would be many respects both have the same character. chartered in one, to carry on their operations in an

How far, then, do corporations, created by and other. It is impossible, upon any sound principle, existing under the authority of State laws, possess to give such a construction to the article in ques. the rights which under the Constitution of the tion. Whenever a corporation makes a contract, it United States belong to the citizens of the several is the contract of the legal entity, of the artificial States, and how far under this instrument are they being created by the charter, and not the contract subject to the legal responsibilities of such citizens? of the individual members. The only rights it can To ascertain and state the answer to this question, claim are the rights given to it in that charter, and as given by the Supreme Court of the United States, not the rights which belong to its members as citiis the object of this article.

zens of a State." 1. The Constitution, in article 4, section 2, pro- In Paul v. Virginia, 8 Wall. 168, the plaintiff in vides that “the citizens of each State shall be error claimed that a law of Virginia which required entitled to all privileges and immunities of citi insurance companies, not incorporated under the zens in the several States." Has this section any | laws of that State, before attempting to carry on relation to corporate citizenship?

business therein, to obtain a license, and make a In The Bank of Augusta v. Earle, 13 Pet. 519, it deposit of guaranty bonds with the treasurer of the was claimed by the plaintiff that the bank, being State, was in conflict with that clause of the Concomposed of citizens of the State of Georgia, was, stitution which declares that “the citizens of each as a corporation, entitled to the privileges and im State shall be entitled to all privileges and immumunities of such citizens in the State of Alabama, nities of citizens in the several States.” Justice and that this right, being based on the National Field, in delivering the opinion of the court, said: Constitution, was one of which it could not be “ The term 'citizens' as then used applies only to deprived by the latter State. This claim assumed natural persons, members of the body politic, owing that the citizenship of the individual corporators allegiance to the State, not to artificial persons creattached to the corporation itself, and, hence, that ated by the legislature, and possessing only the attheir rights as individuals, under the Constitution, tributes which the legislature has prescribed.” After were the measure and criterion of its rights. In alluding to the language used in The Bank of Auanswer to this view the court laid down the follow- gusta v. Earle, supra, in regard to the rights of a ing propositions: 1. That a corporation can do no corporation, he proceeded to say: “Having no abacts and make no contracts, either within or with-solute right of recognition in other States, but deout the State which created it, except such as are pending for such recognition, and the enforcement authorized by its charter. 2. That the powers of a of its contracts, upon their assent, it follows as a corporation, conferred by the laws of one State, can I matter of course, that such assent may be granted

upon such terms and conditions as those States may plaintiffs as individuals, because it could not be think proper to impose. They may exclude the true as applied to the corporation." foreign corporation entirely, they may restrict its In Hope Insurance Company of Providence v. Boardbusiness to particular localities, or they may exact. man et al., 5 Cranch, 57, the court referred to the such security for the performance of its contracts above case as having settled the question that “the with their citizens as in their judgment will best right of a corporation to litigate in the courts of the promote the public interest. The whole matter United States depended upon the character (as to rests in their discretion.”

citizenship) of the members which compose the These cases settle the question that no right of body corporate, and that a body corporate as such citizenship attaches to a corporation outside of the cannot be a citizen within the meaning of the ConState in which it is organized, under the clause of stitution.” The judgment of the court below was the Constitution which guarantees to the citizens of reversed for the want of jurisdiction. In both of each State the privileges and immunities of citizens these cases it was held that, in order to give jurisin the several States. The guaranty applies only to diction at all, it was necessary to aver the requisite natural persons. A corporation is not a citizen citizenship of the corporators. within its meaning, and, of course, can claim no This continued to be the doctrine of the Supreme rights under it.

Court until 1844, when, in The Louisville, Cincin2. The judiciary article of the Constitution pro- nati and Charleston Railroad Co. v. Leston, 2 How. vides that the judicial power of the United States | 497, the whole question was subjected to a thorough shall extend to “controversies between citizens of examination, resulting in the adoption of a differdifferent States.” The jurisdiction here granted ent view. Justice Wayne, in delivering the opinion depends not on the nature or subject matter of the of the court, said: “A suit, then, brought by a controversy, but on the character of the parties. citizen of one State against a corporation by its They must not only be citizens, but also citizens of corporate name, in the State of its locality by which different States.

it was created, and where its business is done by Congress, for the purpose of vesting this power, any of the corporators who are chosen to manage has provided that the Circuit Courts of the United its affairs, is a suit, so far as jurisdiction is conStates shall have original jurisdiction in “all suits cerned, between citizens of the State where the suit of a civil nature at common law or in equity, where is brought and a citizen of another State. The corpothe matter in dispute, exclusive of costs, exceeds rators, as individuals, are not defendants in the suit, the sum or value of five hundred dollars, and but they are parties having an interest in the result, * * * * * the suit is between a citizen of | and some of them being citizens of the State where the State where it is brought and a citizen of an- | the suit is brought, jurisdiction attaches over the other State.” U. S. Rev. Stat., $ 629. Are cor corporation." The court held that the jurisdiction porations citizens for the purposes of this jurisdic would still remain, though some of the members of tion ?

the corporation resided in a different State. “A This question came before the Supreme Court of corporation,” said Justice Wayne, “created by a the United States in 1809, in The Bank of the United State to perform its functions under the authority States v. Dereaux et al., 5 Cranch, 61. Chief Justice of that State, and only suable there, though it may Marshall, in delivering the opinion of the court, have members out of the State, seems to us be a said that one of the points involved in the case was person, though an artificial one, inhabiting and bewhether “a corporation, composed of citizens of longing to that State, and therefore entitled, for the one State, may sue a citizen of another State in the purpose of suing and being sued, to be deemed a citiFederal courts.” In respect to this question he said: | zen of that State.” This ruling modified the ground " That invisible, intangible and artificial being, that taken in the preceding cases. mere legal entity, a corporation aggregate, is certainly In Marshall v. The Baltimore and Ohio Railroad not a citizen, and, consequently, cannot sue or be Company, 16 How. 314, it was held that the jurissued in the courts of the United States, unless the diction of the Circuit Courts of the United States rights of the members in this respect can be exer- attaches where a corporation is a party when the cised in their corporate name. If the corporation averment on the record shows that a citizen of one be considered as a mere faculty, and not as a com State sues a corporation created by the legislature pany of individuals, who in transacting their joint of another State. Justice Grier, in stating the concerns may use a legal name, they must be ex- | opinion of the court, said: “The persons who act cluded from the courts of the Union.” The ruling under these (corporate) faculties, and use this corin this case was that “the capacity of a corporation porate name, may justly be presumed to be resident aggregate to sue in” the courts of this United in the State which is the necessary habitat of the States “depends upon the citizenship of its mem- corporation, and where alone they can be made subbers,” and that the averment “must apply to the ject to a suit, and should be estopped in equity from

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averring a different domicile as against those who | rations, but also to public and municipal corporaare compelled to seek them there, and can find them tions, as cities, towns and counties. The latter, for there and nowhere else. * * * The presumption the purpose of Federal jurisdiction, are deemed to arising from the habitat of a corporation in the place be citizens of the State under whose laws they were of its creation being conclusive as to the residence | organized; and as such they may sue or be sued or citizenship of those who use the corporate name, | in Federal courts, where the adverse party is a and exercise the faculties conferred by it, the allega citizen of another State. This was affirmed in tion that the defendants are a body corporate by the Coules v. Mercer County, supra. Judge Dillon, act of the General Assembly of Maryland, is a suffi supra, p. 50, quotes the language of Justice Grier cient averment that the real defendants are citizens | in Mc Coy v. Washington County, who said “that of that State.” The domicile of the corporation, though the metaphysical entity called a corporation according to this ruling, is a conclusive presumption may not be physically a citizen, yet the law is well as to the domicile of the corporators, for all pur settled that it may sue and be sued in the courts of poses connected with the question of jurisdiction. the United States, because it is but the name under

In The Covington Drawbridge Company v. Shepherd, which a number of persons, corporators and citi20 How. 227, it was held that, “ where the act cre- zens, may sue and be sued. * * * That the deating a corporation is a public act of which the fendant is a municipal corporation, and not a private court takes judicial notice, it is sufficient to de one, furnishes a stronger reason why a citizen of scribe it as a citizen of the State by which it is so another State should have his remedy in this court, created." In The Ohio and Mississippi Railroad Com and not in a county where the parties against whom vany v. Wheeler, 1 Black, 286, it was decided that the remedy is sought would compose the court and "a suit by or against a corporation, in its corporate jury to decide their own case.” “The power to capacity, is a suit by or against citizens of the State | contract with citizens of other States," said Chief which created it," and that “no averment to the Justice Chase in Cowles v. Mercer County, supra, contrary will be heard to defeat the jurisdiction of "implies liability to suit by citizens of other States, the Circuit Court.” In Coules v. Mercer County, 7 and no statute limitation of liability can defeat a Wall. 118, it was held that “a municipal corpora- / jurisdiction given by the Constitution." tion created by one State within its own limits may 3. Congress, in legislatively vesting the judicial be sued in the courts of the United States by citi- | power of the United States, has provided that any zens of another State.” In Railway Company v. “final judgment, or decree, in any suit in the highWhitton, 13 Wall. 270, it was held that “although a est court of a State in which a decision in the suit corporation, being an artificial body created by leg- could be bad," may, in the three cases specified, but islative power, is not a citizen within several pro not necessary to be here repeated, “be re-examined visions of the Constitution, yet, when rights of and reversed or affirmed in the Supreme Court upon action are to be enforced by or against a corpora a writ of error.” U. S. Rev. Stat., $ 709. This tion, it will be considered as a citizen of the State right, accruing after a trial and judgment in & where it was created, within the clause extending State court, enables either party, within the limits the judicial power of the United States to contro stated, to bring the question involved before the versies “between citizens of different States.” Supreme Court of the United States for final deter

Judge Dillon, in his Removal of Causes, p. 49, | mination. remarks that “the settled rule now is that a corpo So, also, Congress has provided for the transfer ration, for all purposes of Federal jurisdiction, is or removal of suits from State courts to the Circuit conclusively considered as if it were a citizen of the Courts of the United States, in certain described State which created it, and no averment or proof as cases, by a compliance with the method prescribed. to citizenship of its members elsewhere is competent | The principal statutes relating to this subject are or material.” Chief Justice Chase, in Cowles v. found in the twelfth section of the Judiciary Act of Mercer County, supra, said that this “must now be 1789, the act of July 27, 1866, the act of March 2, taken as the settled construction of the Constitu- | 1867, and the act of March 3, 1875. The first three of tion.” The original ground of the Supreme Court the above acts are, for substance, re-enacted in secwas that the jurisdiction depended upon and was tion 639 of the Revised Statutes of the United determined by the citizenship of the corporators, States. All of them, including the act of 1875, and hence that it was necessary to aver this citizen- give the right of removing a suit commenced in any ship. The ground subsequently taken, and now State court to a Circuit Court of the United States, held, is that, for all the purposes of jurisdiction, a when the amount in dispute, exclusive of costs, excorporation is a citizen of the State creating it ceeds the sum or value of five hundred dollars, and within the meaning of that clause of the Constitu- | when the controversy is between citizens of differtion which refers to “controversies between citizens ent States. The acts differ in minor details, but of different States."

they all embrace these principles. In Gaines v. This doctrine applies not only to private corpo- ' Fuentes et al., 2 Otto, 10, it was held that “in cases

where the judicial power of the United States can ance company derives no support from an unconbe applied only because they involve controversies stitutional statute, and is void, as it would be had between citizens of different States, it rests with no such statute been passed.” Congress to determine at what time, and upon what The Supreme Court treated the Home Insurance conditions, the power may be invoked, whether Company as a citizen of the State of New York, originally in the Federal court, or after suit brought having a controversy with a citizen of the State of in the State court, and, in the latter case, at what Wisconsin, and hence entitled as such to remove its stage of the proceedings — whether before issue or case into a Federal court, and then to have the case trial by removal to a Federal court, or after judg-heard upon a writ of error in the Supreme Court ment upon appeal or writ of error.” The statutes itself. The corporation, for all these remedial above referred to constitute a legislative expression purposes, was deemed to be a citizen of the State of the wisdom of Congress on this subject.

creating it, as fully as if it had been a natural person. Thus the citizens of each State may, in the cases Justice Hunt, in delivering the opinion of the specified, both before and after judgments in State court, said that "a corporation has the same right courts. seek judicial relief in the courts of the to the protection of the laws as a natural citizen and United States. A certain class of judgments may the same right to appeal to all the courts of the be brought before the Supreme Court by a writ of country.” error; and so a certain class of suits commenced in Such is the doctrine of the Supreme Court of the State courts may be transferred to the Circuit Courts United States in regard to the citizenship of corpoof the Union. How do these provisions operate in rations. Though not citizens for all purposes and relation to corporations? We wer this question in all respects, yet, under the National Constitution, by giving a single illustration.

they are citizens within the meaning of the clause In Morse v. The Home Insurance Co., 30 Wis. 496, that relates to “controversies between citizens of it was held by the Supreme Court of Wisconsin, different States," and within the meaning of the that a statute of that State, requiring insurance legal provisions that refer to the removal of corporations organized in other States, before doing suits from State to Federal courts, and to the right business in that State, to agree not to remove into by writ of error to have a case re-examined and the Federal courts any suits that may be brought decided in the Supreme Court as against any judgagainst them in the courts of that State, is not in- ment or decree, in the case specified, rendered by consistent with the Constitution or laws of the the highest court of a State in which the decision United States. The Home Insurance Company, al can be made. Their citizenship in these particucorporation organized under the laws of the State | lars, and for these purposes, is as complete as that of New York, executed such an agreement; and, 1 of natural persons. It secures to them the same being subsequently sued in the Circuit Court of

rights of suit, and subjects them to the same liaWinnebago county, the company sought to remove | bility of being sued in the courts of the United the suit to the United States Circuit Court for the

States. Eastern District of Wisconsin, by a compliance with the legal provisions for that purpose. The

THE ENGLISH BENCH - MAJOR AND MINOR court refused to grant the petition of the defend

SCANDALS. ant, proceeded with the trial, and gave judgment against the company. The case was appealed to

LONDON, October 31, 1877. the Supreme Court of the State, and the judgment JN my last letter I mentioned some reports that were was there affirmed, the court holding that the com I current about the successor of Sir Richard Amph

lett on the bench of the Appeal Court, and gave my pany had, by its own agreement, waived the right of

own impression in favor of the promotion of Mr. Jusremoval.

tice Lush. We were all of us very much mistaken. The case was then, by writ of error, brought to

On the day after my letter was dispatched, it was conthe Supreme Court of the United States, and the fidently asserted in legal circles, that the vacancy had judgment was there reversed. See Insurance Com been offered to Mr. Alfred Henry Thesiger, Q. C., and pany v. Morse, 20 Wall. 445. The view adopted by on the next day that statement appeared prominently the Supreme Court embraces these points: 1. That

in The Times. To those not in the confidence of the “the Constitution of the United States secures to

Prime Minister or the Lord Chancellor, this announce

ment came like a peal of thunder out of a clear sky. citizens of another State other than that in which

Mr. Thesiger had never beeu thought of; and one very the suit is brought an absolute right to remove their good friend of the government--the Pall Mall Gazette cases into the Federal court, upon compliance with – said: “It may be so, but for the present we hesitate the terms of the act of 1789.” 2. That “the statute to believe it. The objections to such an appointment of Wisconsin is an obstruction to this right, is re

are so patent and so serious — the report that it has

been made is, in plain language, so incredible - that pugnant to the Constitution of the United States

we prefer to reserve our comments on this extraordiand the laws in pursuance thereof, and is illegal nary piece of news until it has received official confirand void.” 3. That “the agreement of the insur-'mation."

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