CONTINENTAL LIFE INS. 00.
York cC);rt, to treat the defendant as a citizen of New Jersey, sued fo1'. it recm'ery of $5,000 and costs. It confided to him the responsibility of defending the suit, and this court has a right to deal with his personal citizenship on the question of removal. It follows that the motion to remand must be denied.
t7. CONTINENTAL LIFE
(Circuit Court, D. Vermont.
JURISDICTION-ApPEARANCE-WAIVER OF IRIlEGULARITIE8.
defendant appeared and demurred to the bill, the 'Parties are before the court, and jurisdiction has attached, it is too late for,defendant to object to the jurisdiction for want of sufficient service of summons.
The jurisdiction of the circuit court in equity U"to be measured by that of the state court of chancery.
A contraot is ,not vitiated by misrepresentations which were wholly as to what would be done thereafter, and not as t'o any past or then present fact. doctrine applied to a case where complainant was induced to take an endowment policy upon his life in the defendant company through various representations made by defendant's agent, to the effect that the profits would amount to enough to pay and cancel notes give'n by him in payment for the policy, and otherwise all to what the insurance would amount to. 4.
Where there is no way to protect and preserve the rights of both parties in a suit in equity but to carry out the contract according to its legal effect, as affected by such representations, estoppels, and additional contracts as may be shown, a bill which prays that the transaction be declared void, that the notes delivered be given up, and the amount of premiums paid be decreed to be refunded, with interest, while the complainant had some insurance on his life during the running of the policy, essentially lacks equity; but he is entitled to a share in the profits belonging to him, to be applied on the notes, and on that ground the bill should be retained.
In Equity. Gilbert A. Dain, for the orator. Charles W. Porter, for defendant. WHEETJER, D. J. The bill alleges in substance that the oratorw'as induced to take an endowment policy upon his life in the defendant company, with a right to share in profits, and to pay premiums thereon, partly in money and partly by his notes, through various represent!ttions made by the defendant's agent to the effect that the
pronts would amount to enough to pay and cancel the notes, and otherwise .as to what the insurance would amount to; that the time has elapsed, and the defendant insists upon taking the amount of the notes from the amount of the policy, and refuses to pay what the agent represented the insurance would amount to upon the payments made, and prays that the transaction may be declared to be void, the notes decreed to be given up, the amount of premiums paid decreed to be refunded, with interest, and for general relief. The plaintiff is a citizen of New Hampshire, the defendant of Connecticut, and the suit was brought in the state court of chancery and has been removed to this court. The service of process was made upon a statutory agent required by the laws of the state for that purpose. The defendant demurs to the bill for want of sufficient jurisdiction acquired by the service, and for want of equity, and the caUSe has been heard upon the demurrer. The jurisdiction is to be measured by that of the state court of chancery. That court is a court of general equity jurisdiction, and has full cognizance of all such cases as this, if any court of equity would have, between parties properly before it. As the defendant appeared and demurred, the parties are before the court and the jurisdiction has attached, and there can be no question remaining upon the demurrer except as to the equity of the bill, and that question is to be attended to. The misrepresentations relied upon to avoid the contract were wholly as to what would be done thereafter, and not as to any past 07 then present fact. The orator had some insurance upon his life during the running of the policy. His claim now is that it does not amount to so much as the defendant represented it would, and as he expected. 'l'he fraud, if there is any, did not exist at the time of the making of the contract, and could not vitiate it. Such fraud would not work backwal'ds. The insurance which the orator has had cannot be restored. There is no way to protect and preserve the rights of both part.ies but to carry out the contract according to its legal effect, as affected by such representations, estoppels, or additional contracts as may be shown. The bill essentially lacks equity in this aspect. The question remains whether there is any other ground stated for equitable relief, for if there is the bill ought to be retained to prevent multiplicity of litigation. As the bill stands the orator is entitled to a share in the profits, to be applied on his notes. The share belonging to him is apparently a proper subject of accounting. The taking that account and applying the amount to which the orator is entitled to the satisfaction of
ROBINSON V. NATIONAL STOCK-YARD CO.
the notes, would be a proper subject for equitable cognizance. On that ground it appears that the bill should be retained. The demurrer is overruled, the defendant to answer over by the next rule-da.y but one.
RoBINSON v. NATIONAL STOCK-YARD Co.'
(Oircuit OQurt, S. D. New York.
JURISDICTION-:FoREIGN CORPORATION-SEU'VICE OF PROCESS
A foreign corporation may exercise its franchises and transactbuAitless within
the state upon such conditions as the laws of the st,ate may impose,'and may consent to be "found" within the state, within the meaniqg of the Statutes, § 739.
The question whether a party has been properly served with -ptocessornot, or whether he has waived his personal privilege, is not a ,of pleading, but one of practice, and it cannot be raised by demur,rer. ·
Emott, Burnett d. Kidder, for complainant. Abbett et Fuller, for defendant. WALLACE, C. J. The defendant demurs to the complaint; and, suant'to the Code of Procedure of this state, alleges as the ground of demurrer "that it appears upon the face of the complaint that the court has not any jurisdiction of the person of the defendant." The point sought to be presented, however, is that the defE:mdarit has not been properly served with process, in that the law of e'ongress has been disregarded which provides that no civil suit sha.ll be brought in any circuit court of the United States, "against an inhabitant of the United States, by any original process in any other distl'ict than that of which he is an inhabitant, or in which he is found at the time of serving the writ.» Rev. St. § 739. The complaint avers that the defendant is a corporation organized and existing under the laws of the state of New Jersey, and is a citizen of that state. Upon this averment the defendant insists that it is to be presumed not only that the defendant is not ari inhabitant of this judicial district, but also that it was not found here ,when t,he writ was served. The demurrer is untenable for two reasons: First, no such pre. sumption can be legitimately indulged. Although a! corporation of another state cannot immigrate to this state it may exercise its fran· chises and transact business here upon such conditions as the laws