,.RIK-E .:t!. ,FLOYD.
, In. determil1ing motion. to J:emand, I. necessarily compelled to determine whether the suit arises under the constitution orlaws of the United States. This jurisdictional question should be determined now, although" if I had serious dou,bts upon t,he .subject, it would per-haps be my duty to retain thecase,and determi;nethe question after all the evidence is in. Bu t, as 1 have no doubt!! upop this question, it is my duty to remand the case to the state court from whence it came. It can be helj.rd.tbere"and in the supreme court of the state; and, if agaiJ:lst the defendat;lts"they still have the right to have court of the Vnited States 118 ,to whether the suit is one arising under _ laws or constitution of theUuited States. The case should be remanded; audit is so or.dered.
.(Circuit· Ctmrt, S. D. Ohio, W. D. Mar 8,1800.) ,
1; RBMOVAL 01' CAUSI!lS-'-CrrIzENS1!lP oFPLAIN-rms.
Act March 8, 1887,(St. 1885-8'1', c.878, § 1,); prllVides:that8sult In a state court, "in which there is: a qontroversy betweeJ;1 a citlzenof thll state in which the $uit isbr(jught and a citizen of another state, "may,undercertain c.ircum.sta.noes, be 'I,'emovedon the ground of localprejudicetothe:United Statlls oirctLit CQurt,by ·anY defendant who is a. citizen of such. other: Held a petition fQr re\lloval wUl 'be di!fmislled when it does not show that all the'plaioti1!sare citizens of the state in '. which the. suit is brought., , ,'. . ' j ':. . . Under said actsu6n defendant may remove the call1!1e''''wben it shall be made to appea.rtoilaid circuit..oonrt-'that; from prejudice or local'wfluence,he Will not be able .to optain j/Istice in .suoh state court, or in other to,which he might under the' state law remove the Clise.'Held ttiat, where the petitioners might, remove the case to any' one of seven counties' adjoining. that in which it was broughh an averment in tbat, onaycou1;ltof loca.l prejudice, they will not be able to obtain justice inilucb courts, is il'18iltlcient.' , their OWUnames, trustees of the Printing Establisbmentofthe United Brethren in Christ, .. which Is averred to be a corporation under the laws of Ohio', the individuals, and not the corpora.tion, are the real .' . . '· ,
OF AFJrIDJ.VIT,. . . ·. . ' . .
CORPORATIONS-INDIVIDUALS SUING AS TRUSTEES.. · Under the l&ws of Ohio,whe.re individuals S"EIl by
Judge:Lawr(!/ftC6, G. W. Houck, and Geo. R. 'Young, fOf petitioners. John A. McMahon and Gunckel &; Rowe, for respondents.
SAGE, J'l (o.raUy.) Petition. by Halleylt Floyd lj.nd Charles S. Miller, defendants, for reIJ;loval from the court of common pleas of Montgomery county, on the ground of local prejudice. The petitioners aver that they were at the time of the bringing of suit, and. citizens of the state of Indiana; that .the plaintiffs sue solely in the capacity of trustees of the Printing· Establishment of the Brethren in Christ, which is averred to be a corporation under the lawl!\ of the st,a.te of Ohio, located and doing business at the qity of Day top I and that, by. virtue of the act of March, 1871, authorizingtlle incorporation of printing and publisbinIJ houses plaintiffs, as trustees, ate lit. QQd.y cQrporate, \lond, of .' .rh!,! sjlit in the
state court was brought against the defendants, in theirindividual and personal capacities, for the purpose of quieting the plaintiffs' title and right of possession, as trustees of said printing establishment, to certain real estate and property located at Dayton, Ohio, occupied for the purposes of such establishmE:nts, and valued at over $260;000. There is filed with the petition an affidavit containing the general averment that, from prejudice and local influence, petitioners will not be able to obtain justice in the state court in which the suit was or in any other state court to which petitioners rtlay, under the laws of the state of Ohio, have the right, on account of such prejudice and local influence, to remove said cause. It does not appear from the petition that the plaintiffs are all, as individuals, citizens of the state of Ohio. As a matter of fact, it was conceded upon the argument that some of them are not citizens of Ohio; but it is claimed that, suing as trustees of the printing establiflhment, they are acting in their corporate capacity, and therefore to be regarded, collectively, as a corporation and a citizen of the state. This claim is not well founded. The corporate name is "The Printing Establishment of the United Brethren in Christj" and, while it is true that the plaintiffs sue as trustees, claiming right of possession and con. trol; it is not true that this suit is by the corporation. The case of Society v. Smithers, 12 Ohio S1., is iu point. In that case there was a contest, as in this, between two .set8 of men, each claiming to be trustees of the corporation, and entitled to the control of its property. The court held that the individuals suing as trustees of the corporation were. the real and substantial in the action. So it is here. The law authorizing the incorporation of such establishments expressly provides fot a corporate name to be specified in the certificate of incorporation, and this suit is not in that name, but in the name of the individuals claiming to be its trustees and managing agents, against the defendants, as individuals, who make the same claim. This being so, it is jiltal to the petition that it does not show that the plaintiffs are all citizens of the state of Ohio. The case of Thouronv. Railroad Co., 38 Fed. Rep. 673, is a controlling authority upon this point. The affidavit in support of the averments oflocal prejudice is not sufficient, in such a case ,as this, to warrant a removal. This is a chancery case, to be tried by the court. If there be any local prejudice in Montgomery county which would inwith a fair and impartial hearing, (and upon this point the court wouldl'equire a very strong and satisfactory showing,) the case could be removed to anyone of seVen adjoining counties; and the removal act re'quires a showing that the local prejudice complained of would prevent an impartial hearing, either in the county where the action is pending, or any other county to which, under the state laws, it could be rem9ved. The proposition tho:t there is such a; condition onoeal prejudice as to affect the minds of the judges of aU:the courts of eight counties--iildeed, of all thejudges of the judicial cirCUits to which those eight counties belong-is 8d extraordinary that an affidavit asserting in general terms the existence of local prejudice authorizing removal would not be regarded by this court as sufficient. The application for removal is overruled.
BIL'l"ON fl. GUYOTT.
Official Liquidator, et 01.
(C'rcuit Court, S. D. Ntw York. April 28, 1800.)
FOREIGN JUDGMENT-WHEN CONCLUSIVE.
A judgment 'n pEn"80nam, rendered in a Murt ot a civilized country havfng,Jurtsdlction o! the sUbject-matter, in a cause involving the consideration of ordinary mercantlle transactions between the parties, and in which the defendant, one of our citizens and not domiciled there, appeared and defended for the purpose of protecting his property from seizure, cannot be impeached when sued on here, though the defendant was at the trial of such cause denied the benefit of our rul.es of evidence and procedure, and though the judgment was based on false testimony, and was erroneous. · Where one sued upon a foreign ju.dgIl1ent a bill in aid of his defense, setting up the erroneous character of the foreign Judgment, and praying discovery to enable him to establish the facts, the defense that the foreign judgment is conclusive, having been rendered in a court having jurisdiction both of the parties and of the subject-matter, may properly be presented by plea unsupported by an answer, when the jurisdictional -facts do not appear in the bill, and when the facts which an answer would tend to prove may be treated as proved in im· peachment of the plea,without destroying the defense pleaded.
In Equity. On plea. JameJ3 C. CartEn" and Horace Russell, for complainants. W. D. Shipman and WiUiam G. Choate, for defendants. W J. The defendants have interposed a plea to a bill of dia-covery, and the plea has been set down for argument. The defendants are the representatives of Fortin & Co., and have brought a suit at law in this court against the complainants, who compose the firm of A. T. Stewart & Co., upon a judgment rendered in a court of France in favor of Fortin & Co. against Stewart & Co., for a money recovery in the sum of $195,122, and Stewart & Co. have filed the present bill in aid of their defense in the action at law. It is alleged in the bill that the complainants are not indebted on account of the matters for which the judgment was obtained by Fortin & Co., and that Fortin & Co. are indebted to them in a considerable sum, for which they are entitled to a judgment in their favor. All the facts to sustain these averments are SAt forth, and the bill alleges that the complainants have set up these facts by way of defense and counter-claim to the suit at law: and the bill prays fora dis-covery, upon interrogatories annexed, to enable the complainants to es-tablish the facts. The bill also contains averments by way of anticipation of the defense, and sets forth facts which are intended to show that the judgment of the French court is re-examinable, and that the complainants are at liberty to contest the merits of the original controversy. These averments are, in substance, that the suits which resulted in the judgment were brought by Fortin & Co. against Stewart & Co. before the tribunal of commerce of Paris, upon matters of contract and account arising from dealings between the two firms at Paris and New York; that when the suits were commenced the members of Fortin & Co. were citizens of France, and domiciled there, and the members of Stewart & Co. were citizens of New York, and were not within or resident within the