pmLADELPHIA &: B. R. CO.
two corporations are merged into one, and that one is the corporation which purchases the property and franchises of the other. Antelope Co. v. Chicago, B. eX Q. By. Co. 4 McCrary, 46; S. C. 16 FED. REP. 295. The case of Railroad Co. v. Wheeler, supra, is analogous to the one now before the court, and the ruling therein seems to us conclusive of the present question. That was a suit brought in the circuit court of the United States for the district of Indiana against Wheeler, who was a citizen of that state; and the declaration stated that the plaintiff was "a corporation created by the laws of the states of Indiana and Ohio, having its principal place of business in Cincinnati, in the state of Ohio," and that it was a citizen of the state of Ohio. The court held that a suit in the corporate name must be regarded as, in contemplation of law, the suit of the individuals composing the corporation, and that, therefore, the action in that case was to be regarded and trea,ted as a suit in which citizens of Ohio and Indiana were joined as plaintiffs in an action against a citizen of the lastnamed state. "Such an action," said the court, "cannot be maintained in a court of the United States, where jurisdiction of the case depends altogether on the citizenship of the parties. And in such a suit it can make no difference whether the plaintiffs sue in their own proper names or by the corporate name and style by which they are described." And the court further said: "The averments of the declaration would seem to imply that the plaintiff claims to have been created a corporate body, and to have been indued with the capacities and -faculties it possesses by the co-operating legislation of the two states, and to be one and the same legal being in both states. If this were the case, it would not affect the question of jurisdiction in this court." The conclusion announced was that, as the plaintiff corporation was composed of citizens of Ohio and Indiana, it could not maintain a suit in a federal court upon the ground of citizenship alone against a citizen of either of those states.. For these reasons we conclude that the case should be remanded to the state court; and it is accordingly so ordered.
& R. R. Co.
l(Jircuit Court, D. New Jersey. December 22, 1884.)
JURISDICTION OF CIRCUIT COURT-RECEIVER ApPOIKTED IN ANOTHER STATEORDER OF PAYMENT OF CLAIM-NEW JERSEY MENT.
A verdict Jefore entr}' of judgment thereon creating no lien on real estate in New Jersey, when a receiver for a railroad corporation, against which such verdict has been obtained, has been appointed before such entr}' by the United States circuit court for the district of New Jersey, ina pruceeding ancillary to
a suit in the circuit court for Pennsylvania, the receiver will not be ordered bY' the court in New Jersey to pay such jlldll:ment; hut the plaintiff will be C01Upelled to make application for Ull order for payment to the court in Penns)lvania.
Rule to Show Cause, etc. Richard ct Lindabury, for the rule. A. G. Richey, for defendant. NIXON, J. This case comes up on a rule to show cause why the receivers of the Philadelphia & Reading Railroad Company should not be required to pay the judgment recovered March 29, 1884, by the above-named plaintiff, out of the funds of the said company in their hands as receivers. On the service of rule the receivers made return (1) that they had no moneys in their hands which were applicable to the payment of the judgment; and (2) that the proceedings under which they became receivers were instituted in the cireuit court of the United States in the Eastern district of Pennsylvania; that the decree in this court, by which they were appointed receivers, was the result of proceedings ancillary to those in the Penn· sylvania court; that all their accounts were settled in the court where they were originally appointed, and the disbursement of all moneys coming into their hands as receivers was made under the direction of said court; and that the application for the payment of the judgment should be made to the United States circuit court for the Eastern district of Pennsylvania, which directs and controls the disbursements as aforesaid. The application is made here, and supported by the counsel for the plaintiff, upon the ground that the plaintiff acquired a lien by his judgment on the real estate of the insolvent corporation in this state before the appointment of the receivers; which lien the court has power to enforce by an order on the receivers for payment, or byexecution against the property affected by the judgment. The decisive question in the case seems to be whether any such lien was acquired. The facts are that the plaintiff, suing the defendant corporation in this court for damages in a case of collision with a train of the Lehigh Valley Railroad Company, at the point where the two roads cross each other, obtained a verdict in said suit on the twenty-seventh of March last. No judgment was entered on the verdict, and no steps taken to enter one, until the sixth day of June following, when the defendant corporation itself applied and obtained a rule therefor. But, in the mean time, proceedings had been taken in the circuit court for the Eastern district of Pennsylvania against the defendant. as an insolvent corporation, under which, on June 2d, receivers had been appointed, and on ancillary proceedings in this court, on the same day, the same gentlemen were named receivers here. This was deemed necessary in order to give them the control of the property of the corporation in this jurisdiction. When they took possession, on June 2,1884, was any lien existing on the real estate which this
.JENNINGS t7. PmLADELPBU &:
court ought to enforce in aid of the plaintiff's judgment? The judg. ment was formally entered after the date of the appointment of receivers; but the plaintiff's counsel insisted, on the argument, that he had secured a lien on the property in New Jersey by virtue of the provisious of section 194 of the practice act of the state, alleging that the judges of the supreme court of the state were accustomed to treat the verdict, before the entry of a judgment, as a lien upon the real estate of the defendant. He produced no authority, and we have not been able to find any, for such a construction of the words of the section. Section 192 abolishes judgment rolls as such, and directs how the clerk shall make up a judgment record, to-wit, by in a separate book the warrants of attorney, declaration, proceed· ings, and judgment in every civil cause. Section 194 simply provides that, until the clerk shall have done this in a case, "the verdict or rule for judgment in the minutes of the court shall be held and taken, in the court in which the same is obtained, to be the record of the judgment in such cause, and shall be received in evidence in said court as such- judgment as fully as if the record had been made up and signed as by said section 192 required." This is clearly a provision which authorizes a court to treat the entries or rules for judgment in its own minutes as evidence of the record of a judgment, before the clerk has had time to make up the record. If the legislature had intended to do more than this, and to repeal the statute existing continuously since the last century, "that no judgments shall affect or bind any lands, tenements, hereditaments, or real estate but from the time of the actual entry of such judgment in the minutes or records of the court," it would have done so in more explicit terms. We therefore hold that when the receivers took charge of the property the plaintiff had acquired no lien by virtue of the verdict. The business of the corporation since their appointment has been conducted under the supervision and control of the court in which the receivers were first appointed. Monthly reports reveal to judges there the condition of the estate, and that is the proper forum to which to apply for orders for the payment of claims. The rule to show cause must be discharged.
FEDERAL REPORTER. PROV-
HIS IMPERIAL MAJESTY, THE SULTAN OF THE OTTOMAN EMPIRE, IDENCE TOOL Co. and others.
(Circuit Oourt, E. D. NelD Yo.rk.
August 22, 1883.)
AT LAW-REV. ST. § 723. A bill in equity that asserts that. plaintiff is entitled to certain properly in. the possession of the defendant, and prays that it be delivered up, and that defendant may be decreed to specifically perform his contmct to deliver it, and may Le enjoined from setting up any claim to it, and that if he has any lien thereon redemption may be allowed therefrom, does not state a case within the equity jurisdiction of a United States circuit court, as plaintiff has an adequate remedy at law by the action of replevin.
In Equity. Evarts, Southmayd et Choate, for complainant. Entler, Stillman et Hubbard and B. P. Thurston, for defendants. BLATCHFORD, J. The bill in this case is founded wholly on an assertion of the legal title of the plaintiff to the rifles and equipments in question. Its prayer is for a decree that the plaintiff has the title to such property and the right to its possession, and that the defendants have no ;itle to it, or valid lien on it, or right to retain it, and that it be delivered over by the defendants to the plaintiff. A claim' of such a character is, in the courts of the United States, under the' distinction maintained by the constitution of the United States between law and equity, and enforced by section 723 of the Revised Statutes of the United States, the subject of a suit at law, and a plain, adequate, and complete remedy is afforded by an action of replevin. This principle is established by numerous cases. Grand Clmte v. Winegar, 15 Wall. 373; Root v. Ra.ilway Co. 105 U. S. 189, 212. The bill prays that the tool company be compelled to specifically perform its undertakings with the plaintiff, and that the defendants' be restrained by injunction from setting up any right or title to, or lien on, the property. But these prayers do not change the attitude of the case. The tool company agreed to make the articles and deliver them to the plaintiff. The plaintiff alleges that the articles have Men made and paid for, and that the title to them has passed to the plaintiff. The case is one of the enforcement of the legal title to chattels in existence, and has no different legal aspect from what it would have had if the chattels had not been made under a contract, but had come otherwise into the possession of the tool company from that of the plaintiff. As to the injunction, that might be asked for in every case of the assertion of a legal title to property by a plaintiff, and thus every case of the kind be made one of equitable cognizance. The bill is not one recognizing a lien and asking to redeem from it. It asserts title and denies any lien, and prays for a delivery of the property. Then it has a second and altel'llative prayer,