THE OSWEGO. DEYO
et rd. ·v. Tn
(Oircuit Court, 8. lJ. New. York. October 111,1888.)
A hole was stove in the side of libelants' canal-boat, when she was laid along-side of the bulkhead. East river. The libelants, without offering direct evidence, contended that the hole was caused by a blow from the Oswego while backing in, by a stroke from her fenders while both boats were lying along-side. Several other. theories were within the possibilities. Three witnesses testified with great positiveness that tbe Oswego did not touch the .canal-boat, .nor even come near· enough to her to hdmit of using the rope feuder which one witness had in his hand. Held, that the finding of the district court would not be disturbed, and the libel should be dismissed.
In Admiralty. On appeal from district court. Libel for collision, by Ezra S. Deyo and others against the floating elevator Oswego and others. Decree for claimant, and libelants appeal. J. F.Mosher, for appellants. Wm. W. Goodrich, for
LACOMBE, J. The libelants' canal-boat, Capt. Dan Bromley, was sound and when:she was laid along-side of the bulkhead between streets, East river. Subsequently, and apparently on the morning of February 2.5 j 1886,a hole was stove in her siele, causing her to leak badly, and greatly damaging her cargo; The libelants conterid that this was done by the Oswego, but offer no direct evidence in support of their claim. What made the bole, and how it was made, is left to be· determined by a balancing of severalpossibiliHes. That itwas caused by a blow from the Oswego while backing in, by a stroke from her fenders, while both boats were· lying along-side, by the floating piece ·.of wood,orthe cakes of ice to whose presence some o£the witnesses testify, by a sunken pile or a. projecting tinlberbefore the Bromley was httuqed') off from ··the blllkhead,are all within the possibilities'. Were it not foththe evidenoe of Walgren,· Lawless, and O'Brien, the first· M these theories would seem to be the most plausible. They tE:stify, however, with great positiveness that the Oswego did not touch the Bromley, nor even come near enough to her to admit of using the rope fender which O'Brien had in hand. The district judge, who saw and heard these witnesses, has credited their testimony, and there is n·othing in the case which should induce this court, which has neither seen nor heard them, from rejecting their evidence. This testimony effectually negatives the theory set out in the libel that the hole was caused by the Oswego striking the canal-boat a violent blow on the starboard side. To undertake to decide from the evidence which, if any, of the other suggested accidents caused the damage is, mere guess-work. The claimants are entitled to a decree dismissing the libel, with costs of this court.
PRESTON tI. FIRE-EXTINGUISHER MANUJ,"G CO.
PRESTON 'lI. FIRE-EXTINGUISHER MANUF'G
CO. et al.
(Oircuit Court, N. D. illinois. November 5, 1888.)
COURTS-FEDERAL COURTS-VENUE-ACTIONS AGAINST CORPORATIONS.
Under act Congo March 3, 1887, as modified and explained by act August 13, 1888.requiring an action in the federal courts to be brought in the district of which defendant is a resident, a New York corporation. having its principal office in that state, and doing business in Illinois, cannot be sued in the fed i era.l courts in Illinois.
In Equity. On plea to the jurisdiction of the court. Bill by E. B. Prestbn against the Fire-Extinguisher Manufacturing CompallY and others to enjoin the infringement of complainant's patent. Munday, 'Evarts Adcock, for complainant. Banning Banning Payson, for defendants.
J. These cases are now before me upon a plea filed in each ca;qse to the jurisdiction of the court. The plea sets up by way 'of chaJ.}'enge to thejurisdiction of the court the fact that this defendant, the FireExtinguisher Manufacturing Company, at the time of the filing of th.e bill of complaint, was a corporation duly organized and existing under and by virtue of the laws of the state of New York; that it has its principal office, and keeps its books of account, in that city; and that no stockholder, qfficer, or ,director resides in this district or state; that said company was not prior to nor at the date Of the filing of the bill'of complaint an illhabitant of the Northern district of Illinois, or of the state of Illinois. Iil the case of Manufacturing Co. v. Manufacturing Co., 34 Fed. Rep. 818, before me in March last, I had occasion to examine thisq1Jestion,' aild there came to the conclusion that, under the act of March 3, .1887 ,-and the same holds good in regard to the act as explained and niodffied by the act of August 13, 1888,-a non-resident corporation cannot be sued in this district; that is, a corporation not a resident of this ,district cannot be sued here merely by service upon an agent/or officer. :The opinion in that case has been published, and counsel are fauliliar 'with it, So it is hardly necessary to quote from it. It is enough to say that the act of 1887 requires'suit to be brought in the district whereoJ the defendant is an inhabitant, but drops the provision in prior E:ltatiltlis subject, that he may also be sued in any district where he may pe fqund .at the time of the serVIng of the process. I have re-exitl1iined ,. thatques1lionin the light of made by counsel for complainant, and still adhere to the conclusion there announced, that a corporation al).d existing solelyqncIer the laws of another state, and ha'ving its principal office and place of business in another state and .' cannot 'be said to be an inhabitant of this district; and be sued here, even although iluchcorporation may do business in this district through agents, except possibly in cases where the jurisdiction depends solely on citizenship. The agents can undoubtedly be sued here, if the case is such as to make them persoll/tHy liable, or when an injunction is sQughtag.ainst