consequence thereof fail to pay said minimum sum of one thousand dollars yearly, then said party of the second part shall, if required by said parties of the first part, relinquish this lease, and the privileges hereby granted, and the same shall cease thereupon."

The company acquired by the agreement the exclusive right to purchase the leased estate, mining rights, etc., at the price of $125,000, payable according to certain named terms.

The complaint alleged that the company entered upon the leased premises, and dug and carried away ores, but only in such quantities that at the agreed rates the royalties fell below $1,000 in each of the years ending May 2, 1884, and May 2, 1885. Judgment was asked for $1,000 for each of those years, less the sum of $59.49, leaving a balance of $1,940.51, with interest from May 2, 1884, on $940.51, and from May 2, 1885, on $1,000.

The company denied all indebtedness to the plaintiffs, and asserted a counterclaim for the sum of $8,000. The answer alleged that Charles Bamford, for himself and Edwin Bamford, in order to induce the company to lease the property, represented the mine to be a valuable ore-producing one; that, properly worked, it would yield, and had yielded, a large amount of zinc and other metals; that it was still a valuable mine for such purposes, and would be a source of profitable investment to the company; that when those statements and representations were made the mine was flooded to the extent of nearly 100 feet, so that it was Impossible for the company's officers, agents, and servants to make actual examination of it; that, relying upon and believing such statements and representations to be true, the defendant entered into the contract; that immediately after the execution of the lease the company, in consequence of the above representations and statements, purchased from the Bamfords a large quantity of tools, wagons, material, and personal property, to be used in developing the mine, paying therefor the sum of $883.74; and that the articles so purchased were of no use or value except for the purpose for which they were so purchased. The answer further alleged that in developing the mine the company expended, in addition to moneys for materials and for cleaning the mine, nearly $4,000, the aggregate of all expenditures by it in that way being between $5,500 and $6,000; that its officers devoted their personal attention and labor to the business, the value of such services being at least $2,500; that these expenditures were made in good faith, and in reliance upon Bamford's statements as to the character of the mine; and that these representations, so made to induce, and which did induce, the company to enter into the lease, were entirely false, whereby it had sustained a loss of at least $8,000.

By stipulation between the parties the plaintiffs had leave to amend and did amend the complaint, claiming judgment for the sum of $1,000, with interest from May 1, 1886, for an additional installment of minimum rent due May 1, 1886.

At the trial the plaintiffs read in evidence the written contract of lease, and rested their case. The company then moved to dismiss the complaint upon grounds set forth in writing. The court denied the motion, and to that ruling the defendants excepted.

The company introduced evidence tending to show that Charles Bamford, prior to the execution of the lease, made the representations stated in the answer and counterclaim. The bill of exceptions states that the defendants in the latter part of 1883 ceased to work the mine, and never resumed, and subsequently claimed that it was valueless for producing ores. The plaintiffs introduced evidence tending to show that the statements alleged to be made by Charles Bamford were in fact true; that the mine, properly worked, would be a valuable oreproducing one; that plaintiffs made no statements about it; and that the company was acquainted with its character, and relied upon their own knowledge, and not upon any statements by the plaintiffs. It appeared in evidence that the company entered into possession and used for several months the mines, buildings, machinery, and fixtures described in the schedule of the lease, which buildings and fixtures cost upwards of $60,000. It did not appear that any complaint of misrepresentation, failure, mistake, or disappointment was made until the answer was filed in this action about August, 1885. There was a verdict in favor of the plaintiffs for $3,201.58, for which sum judgment was rendered.

Sidney Ward, for plaintiff in error. L. A. Fuller and M. L. Towns, for defendants in

error.

*Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

The defendants requested the court to charge the jury that the plaintiffs could not recover rent for any particular year, unless it appeared that the ores mined on the leased property in that year were sufficient, on the basis of the royalties stipulated, to amount to $1,000; and that, unless enough ore was found to enable the company, giving proper care and attention, to prosecute the mining without loss, then the consideration upon which its agreement was based failed, and plaintiffs could not recover. These propositions, embodied in specific requests for instructions to the jury, were rejected by the court. The same propositions constituted the grounds upon which the company, at the close of the plaintiffs' evidence, asked the court to dismiss the complaint. That mo

699.

⚫672

899a

673

tion, and the specific requests for instructions, were denied. The action of the court in those respects is assigned for error.

In our opinion, no error was committed by the court below. Looking at all the provisions of the lease, it is clear that the defendant engaged to pay as rent in each year the royalties fixed in the lease, and if in any year the royalties fell below the sum of $1,000 it was to make up the deficit, so that the latter sum should, in any event, be paid annually as rent. The defendant took the chance of a failure to find ore in sufficient quantities to justify working the mines, and the plaintiffs took the chance of not obtaining more than $1,000 annually during the existence of the lease for the use of buildings and fixtures that had cost them more than $60,000. To secure the payment annually of at least $1,000, the right was reserved to the plaintiffs to terminate the lease if the company failed in any year to pay that sum as rent. And that the company might get the advantage of any developments indicating that the leased premises were of substantial value, the exclusive privilege was reserved to it of purchasing them at any time while the lease remained in force for the price of $125,000. The rulings of the cir cuit court were in harmony with these views. We are also of opinion that no error was committed in refusing the defendant's requests for instructions upon the subject* of the alleged false representations. The charge upon that issue was very full and satisfactory. The court said, in substance, that a person who makes representations of material facts, assuming or intending to convey the impression that he has actual knowledge of the existence of such facts, when he is conscious that he has no such knowledge, is as much responsible for the injurious consequences of such representations, to one who believes and acts upon them, as if he had actual knowledge of their falsity; that deceit may also be predicated of a vendor or lessor who makes material untrue representations in respect to his own business or property, for the purpose of their being acted upon, and which are in fact relied upon, by the purchaser or lessee, the truth of which representations the vendor or lessor is bound, and must be presumed, to know. Touching the alleged representations as to the value of the leased property, the court said that general assertions by a vendor or lessor that the property offered for sale or to be leased is valuable, or very valuable, although such assertions turn out to be untrue, are not misrepresentations amounting to deceit, nor are they to be regarded as statements of existing facts, upon which an action for deceit may be based, but rather as the expressions of opinions or beliefs; that, as a general rule, fraud upon the part of a vendor or lessor, by means of representations of existing material facts, is not established, unless it appears such representations

were made for the purpose of influencing the purchaser or lessee, and with knowledge that they were untrue; but where the representations are material, and are made by the vendor or lessor for the purpose of their being acted upon, and they relate to matters which he is bound to know, or is presumed to know, his actual knowledge of their being untrue is not essential.

We perceive no objections to these instructions. They were sufficient for the guidance of the jury in respect to the alleged false representations by the plaintiffs. Judgment affirmed.

In re HOHORST. (December 18, 1893.) No. 7 Original.

(150 U. S. 653)

FEDERAL COURTS-JURISDICTION-FOREIGN CORPORATIONS-SERVICE-MANDAMUS-LACHES.

1. The provision in section 1 of the judiciary act of 1887-88, prohibiting the bringing of suit against any person "in any other district than that whereof he is an inhabitant," is inapplicable to aliens or foreign corporations sued here, especially in patent cases; and such persons or corporations may be sued by a citizen of a state in any district where service can be obtained.

2. Service upon a foreign steamship corporation may be had by serving, as general agent, the head of a firm, who are its financial agents in this country, at the office of the corporation for the transaction of such business.

3. Delay in applying for a mandamus requiring a circuit court to take jurisdiction of a cause does not constitute laches when mainly due to the failure of the opposite party to move in the supreme court for dismissal of an appeal taken by the petitioner from an order dismissing his bill, such order not being appealable, because it did not dispose of the case as to all the defendants.

4. Mandamus will lie from the supreme court of the United States to compel a circuit court to take cognizance of a cause in which proper service has been made, but which it has wrongfully dismissed for want of service or power to make service in the district, when the order of dismissal is not appealable because it does not dispose of the case as to all the de fendants.

Petition by Friedrich Hohorst for a writ of mandamus. Granted.

Statement by Mr. Justice GRAY: *This was a petition for a writ of mandamus to the judges of the circuit court of the United States for the southern district of New York, to command them to take jurisdiction and proceed against the Hamburg-American Packet Company upon a bill in equity filed in that court on September 15, 1888, by the petitioner, described in the bill as of the city of New York, and a citizen of the state of New York, against "the Hamburg-American Packet Company, a corporation organized and existing under the laws of the kingdom of Hanover, empire of Germany, and doing business in the city of New York; Henry R. Kunhardt, Sr., Henry R. Kunhardt, Jr., George H. Diehl, citizens of the United States, and residents of the state of New York; and Arend Behrens and

*654

William Koester, citizens of the United States, and residents of the state of New Jersey," for the infringement by all the defendants of letters patent granted by the United States to the plaintiff for an improvement in slings for packages. Upon that bill the following proceedings took place:

A subpoena was issued, addressed to all the defendants, and was served on September 17, 1888, as stated in the marshal's return thereon, "upon the within-named defendant Henry R. Kunhardt, Sr., by exhibiting to him the within original, and at the same time leaving with him a copy thereof;" and "upon the within-named defendant Hamburg-American Packet Company, by exhibiting to Henry R. Kunhardt, Sr., general agent for said company, the within original, and at the same time leaving with him a copy thereof."

On November 5, 1888, the return day of the subpoena, a general appearance for all the defendants was entered by a solicitor.

On December 18, 1888, the company, "by Kunhardt & Co., agents," filed a demurrer to the bill for multifariousness, for want of equity, "and for divers other good causes of demurrer appearing in the said bill of complaint," and not otherwise specified; and supported the demurrer by the affidavit of Behrens that he was an agent of the company, that the demurrer was not interposed for delay, and that he was duly authorized to make the affidavit in behalf of the company.

On December 24, 1888, the plaintiff moved for leave to amend his bill, by alleging that the defendants jointly infringed his patent; and "that all of the defendants above named are inhabitants of the city and county of New York; that the defendant the HamburgAmerican Packet Company has its principal business office in this country located in the city and county of New York; that the defendants Henry R. Kunhardt, Sr., Henry R. Kunhardt, Jr., George H. Diehl, Arend Behrens, and William Koester are, and during the time of the infringement above set forth were, copartners under the firm name of Kunhardt & Company, and as such copartners are and were the agents and managers of the business of the Hamburg-American Packet Company in this country, and have their principal business office as such located in the city and county of New York; and that the said infringements were committed in the prosecution of such business, and all the defendants have co-operated and participated in all the said acts and infringements."

An affidavit of Behrens, filed in opposition to this motion, contained the following statements: "I do not regard it as true that the Hamburg-American Packet Company has its principal business office in this country located in the city and county of New York. The actual facts are that the said company has its docks, where all its steamers land and take and discharge cargo, situated

in the state of New Jersey. There also is the office of the company for the transaction of the matters immediately connected with all its actual industrial operations in this country. Said company advertises that it has an office in the city of New York, which is the office of the firm of Kunhardt & Co., is rented by Kunhardt & Co., and entirely under their control. It is in fact the office of Kunhardt & Co., agents for the HamburgAmerican Packet Company; and in said office of Kunhardt & Co., and by Kunhardt & Co. as agents, the usual monetary and financial transactions of said Hamburg-American Packet Company are conducted. All the actual physical business of said HamburgAmerican Packet Company within the United States, however, is conducted within the state of New Jersey, as aforesaid. It is not true that Kunhardt & Co. have, jointly with said Hamburg-American Packet Company, infringed the letters patent set forth in the bill of complaint. All operations of loading and unloading the cargo from the said Hamburg-American Packet Company's vessels in this country are performed in New Jersey as aforesaid, under the immediate direction and control of a superintendent especially employed and appointed by the HamburgAmerican Packet Company for that purpose, and whose salary or compensation is paid by said company, and with the direction and details of whose supervision of said loading and unloading the firm of Kunhardt & Co. have no concern and exercise no control."

On January 7, 1889, the company moved to dismiss the bill for want of jurisdiction.

On January 11, 1889, the motion to amend and the motion to dismiss were heard together; and the court denied the motion to dismiss, "but without prejudice to any subsequent demurrer, plea, answer, or motion to dismiss, because of lack of jurisdiction;" gave the plaintiff leave to amend the bill, as prayed for, nunc pro tunc as of the time when it was filed; and gave the defendants leave to answer, plead, or demur to the bill, as amended, on or before the first Monday of March. On February 2, 1889, the plaintiff filed a bill so amended.

On February 16, 1889, the company served on the plaintiff notice of hearing upon the bill and demurrer.

On February 21, 1889, the company moved for leave to amend its general appearance into a special appearance for the specific and only purpose of moving to set aside the service of the subpoena upon it through its alleged agent Henry R. Kunhardt, Sr., and to dismiss the bill as against it for want of jurisdiction; and also moved to set aside the service and to dismiss the bill as against it, "because of lack of jurisdiction of this court over the person of said defendant."

An affidavit of Richard John Cortis, filed in support of this motion, stated that for several years he had been well acquainted with the details of the organization and residence and

general business of the company; that its principal offices and place of business were, and always had been, at the city of Hamburg, in the empire of Germany, and the residences of all its directors and stockholders were within the territorial limits of that empire; and that it had never had an office in the city of New York, or at any place within the southern district of New York.

On April 5, 1889, the court ordered that this motion be granted, unless the plaintiff should, within five days, file a stipulation to withdraw the amended bill as to the company, and to go to trial as to the company upon the original bill. 38 Fed. 273. No such stipulation having been filed, on April 11, 1889, the court ordered that the appearance be amended as moved for; that the service of the subpoena upon the company be set aside and quashed; and that the bill be dismissed as against the company.

From that order the plaintiff, on May 23, 1889, took an appeal, which was entered in this court on October 8, 1889, argued on March 13, 1893, and dismissed on March 27, 1893, for want of jurisdiction, because that order, not disposing of the case as to all the defendants, was not a final decree, from which an appeal would lie. 148 U. S. 262, 13 Sup. Ct. 590.

*On May 1, 1893, an application was made to this court for leave to file the present petition, praying for a writ of mandamus to the judges of the circuit court to take jurisdiction and proceed against the company in the suit aforesaid, and to strike from the record the order of April 11, 1889, and to make such disposition of the suit as ought to have been made had that order not been made; and for such other relief in the prem ises as might be just.

On May 10, 1893, this court gave leave to file the petition, and granted a rule to show cause, returnable at this term. On October 17, a return was filed, setting forth the foregoing proceedings of the circuit court,, and stating that the order of April 11, 1889, was made upon the following grounds:

(1) That it was made to appear, and the circuit court found, that the company had originally made a general, instead of a special, appearance in the suit, because of a justifiable mistake on its part as to the nature of the suit, caused by the plaintiff's own allegations in the original bill.

(2) That it appeared by the affidavits and other proceedings set forth in the record that the company is a corporation organized and existing under the laws of the kingdom of Hanover, empire of Germany, and is not, and was not at the time of the service of the subpoena upon Henry R. Kunhardt, Sr., an inhabitant of the southern district of New York.

(3) That, upon the facts as presented to the circuit court, and shown by the record, it did not appear that said Kunhardt was at any time the general agent of the company, or

Mr. Justice GRAY, after stating the facts in the foregoing language, delivered the opinion of the court.

By the constitution of the United States (article 3, § 2) the judicial power shall extend to all cases, in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to controversies to which the United States shall be a party; to controversies between citizens of different states; between citizens of the same state claiming lands under grants of different states; and between citizens of a state and foreign states, citizens, or subjects.

By the act of March 3, 1887, (chapter 373, § 1,) as corrected by the act of August 13, 1888, (chapter 866,) "the circuit courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, and arising under the constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or in which controversy the United States are plaintiffs or petitioners, or in which there shall be a controversy between citizens of different states," "or a controversy between citizens of the same state claiming lands under grants of different states, or a controversy between citizens of a state and foreign states, citizens or subjects." 24 Stat. 552; 25 Stat. 434.

The intention of congress is manifest, at least as to cases of which the courts of the several states have concurrent jurisdiction, and which involve a certain amount or value, to vest in the circuit courts of the United States full and effectual jurisdiction, as contemplated by the constitution, over each of the classes of controversies above mentioned; and (what particularly concerns the case at bar) congress, following the very words of the constitution, has here vested in those courts jurisdiction of controversies "between citizens of a state and foreign states, citizens or subjects."

The question then arises how far the jurisdiction thus conferred over this last class of controversies, and especially over a suit by a citizen of a state against a foreign citizen or subject, is affected by the subsequent provisions of the same section, by which, after other regulations of the jurisdiction of the circuit courts and district courts of the United States, "it is enacted that "no civil suit shall be brought before either of said ccurts against any person by any original process or proceeding in any other district

099*

than that whereof he is an inhabitant; but, where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant."

Of these two provisions, the latter relates only to suits between citizens of different states of the Union, and is therefore manifestly inapplicable to a suit brought by a citizen of one of these states against an alien; and the former of the two provisions cannot reasonably be construed to apply to such a suit.

The words of that provision as it now stands upon the statute book are that "no civil suit shall be brought before either of said courts against any person by any origi nal process or proceeding in any other district than that whereof he is an inhabitant." These words evidently look to those persons, and those persons only, who are inhabitants of some district within the United States. Their object is to distribute among the particular districts the general jurisdiction fully and clearly granted in the earlier part of the same section; and not to wholly annul or defeat that jurisdiction over any case comprehended in the grant. To construe the provision as applicable to all suits between a citizen and an alien would leave the courts of the United States open to aliens against citizens, and close them to citizens against aliens. Such a construction is not required by the language of the provision, and would be inconsistent with the general intent of the section as a whole.

This view is confirmed by a consideration of the earlier statutes upon this subject, which, although repealed, may properly be referred to in aid of the construction of existing laws. Ex parte Crow Dog, 109 U. S. 556, 561, 3 Sup. Ct. 396; Viterbo v. Friedlander, 120 U. S. 707, 725, 726, 7 Sup. Ct. 962. The corresponding provision, as originally enacted in the judiciary act of September 24, 1789, (chapter 20, § 11,) continued in force for the greater part of a century, and retained in the Revised Statutes,*applied only to inhabitants of the United States; for its words were that no civil suit should be brought "against an inhabitant of the United States by any original process in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ." 1 Stat. 79; Rev. St. § 739. The substitution, in the act of March 3, 1875, (chapter 137, § 1,) of the words "against any person" for the words "against an inhabitant of the United States," has been assumed to be an immaterial change. 18 Stat. 470; In re Louisville Underwriters, 134 U. S. 488, 492, 10 Sup. Ct. 587; Shaw v. Mining Co., 145 U. S. 444, 448, 12 Sup. Ct. 935. But, if the act of 1875 could have been treated as extending the provision to suits against aliens, it could only be by virtue of the clause permitting defendants to be sued in the district

in which they were found. That clause hav ing been stricken out in the acts of 1887 and 1888, the provision, as it stands in these acts, must be limited by implication, as the provision in its original form was by express words to inhabitants of the United States, and it is therefore inapplicable to an alien or to a foreign corporation.

Moreover, the present suit is for an infringement of a patent for an invention, the jurisdiction of the national courts over which depends upon the subject-matter, and not upon the parties; and, by statutes in force at the time of the passage of the acts of 1887 and 1888, the courts of the nation had original jurisdiction "exclusive of the courts of the several states," "of all cases arising under the patent-right or copyright laws of the United States," without regard to the amount or value in dispute. Rev. St. § 629, cl. 9; Id. § 711, cl. 5. The section now in question at the outset speaks only of so much of the civil jurisdiction of the circuit courts of the United States as is "concurrent with the courts of the several states," and as concerns cases in which the matter in dispute exceeds $2,000 in amount or value. The grant to the circuit courts of the United States, in this section, of jurisdiction over a class of cases described generally as "arising under the constitution and laws of the United States," does not affect the jurisdiction granted by earlier statutes to any court of the United States over specified cases of that class. If the clause of this section defining the district in which suit shall be brought is applicable to patent cases, the clause limiting the jurisdiction to matters of a certain amount or value must be held to be equally applicable, with the result that no court of the country, national or state, would have jurisdiction of patent suits involving a less amount or value. It is impossible to adopt a construction which necessarily leads to such a result. U. S. v. Mooney, 116 U. S. 104, 107, 6 Sup. Ct. 304; Miller-Magee Co. v. Carpenter, 34 Fed. 433. It was contended in behalf of the company that this case was governed by the recent decisions of this court in Shaw v. Mining Co., 145 U. S. 444, 12 Sup. Ct. 935, and Southern Pac. Co. v. Denton, 146 U. S. 202, 13 Sup. Ct. 44. But those decisions went no further than to hold that within the meaning of the judiciary acts a corporation cannot be considered a citizen, an inhabitant, or a resident of a state in which it has not been incorporated; and that under the act of 1888 a corporation incorporated in one of the United States, and in that state only, cannot be compelled to answer in another state in which it has a usual place of business, and of which the plaintiff is not a citizen. In the first of those cases it was observed that the question what might be the rule in suits against an alien or a foreign corporation was not before the court, and might be governed by different considerations. 145 U. S. 453, 12 Sup. Ct. 935.

602