solvency. In· tJl'e' rpteseht case, so far lis the complainant'and' tile erick Bank are&ncel1led) the note had been collected and credit given. The reasoningdf the court in the last above cited case would seem to support the contention of the defendant ill this case. So far as the conclusions reached" 'by the court iD;Levi v. Bank, 5 Dill. 104, are inconsistentwith this opinion,' I do nof'agree with them. Demurrer sustailled.
V. & G. R. Co. et ale
(OirQ'Uit Court, B. D.
ATLANTA & F. R. Co.
Georata. W. D.
RBOmvERS-J'UJUSDIOTION Oil' STATE AND FEDERAL COURTS-COMITY·
. .'C(lmity does not require that a federal court shall refuslitoappoint a reCeiver fer anUroad bellause of the pendenoy ofa prior foreclbsure suit in the state CO,I1"w!ten'such 5uit is adJIiittedly an amicable proceeding. intended as a means of nnl'&the property into success, and it appears that there is no immediate pnrpose of procuring t\:!.e appointment of a receiver therein.
SAil:E-PmOlUTY Oil' SUIT AND Oil' POSSES$ION.
'Where a receiver appointed by a federal court actnall)' takes possession of the property, the jurisdiction of that court is, complete, and possession wlll not be , yielded to a receiver subsequently appointed by a state'conrt, although the suit in the atate court was commenced before that in the federal court. . the state court, prior to the of the federal receiver, had granted an order restraining the officers of the company from using its funds fol' than oorpoIi'ate pUl!'Poses, does not show prior possession by it. . Under thelaws of Georgia, (Code, § 8406,> a railroad ool!'Poration is a residel},tof the entire'state, and aD-mhabitant of all the counties :through which the roadrill18, IWdmay, be sued in any of them. Dam v. Bankl.ng Qo., 17 Ga. 326, followed,
,Oil' :ij.AILROJ,D ,CORPORATION..
T4e '. fact
Ubder Rev. St. U.S. 5 789, declaring that civil suits shall .only be broughtln the distri,cti,of which 4efeqdant is an in1:labitant, etc' l a railroad company i8.an inhabita,Iit of any distriot iu which it operates its roaa through .authorized agents. U.'B; v. Ra'llroatlOo.,49 Fed. Rep. 297. followed. . ,WP.ell a federal court has general jurisdiction of .the controversy. and the federal stlilm'tes give the plaintitr a ohoice as to the district in he will sue, , dict,iPn thus obtained C&lInot be. restricted by the laws of the state respecting the
C81,188S. SAME":"RxPEAl.'OIl' STATtr'l'B-SPITS 011' "LOOAL NATURE." SUT. LAWS. .'
Rev. 'St. U. S. §§ 740.742.,relatin!!' to the districts in which suits of a "local 'bat,.. ure",maY"be'brought, ',were not repealed by the juri8dictional acts of 11'11,1887, q:r 18SS: ., . . . A suit by oreditors for 1;11e appointment of a receiver for a railroad Is 8 snit of a "local nature," within the meaning of Rev. St. U. S. SS 740-742, relating to the diatricts in which Buits'mey be brougat.
In Equity.' . Bill by the East Tennessee) Virgihia & Georgia Railroad Company and the Westetn Railroad Company of Alabama against the Atlanta & Florida Railroad Company for injunction and the appointment ofa receiver. Plaintiffs move for an attachment against T. W. Garrett for resisting the decree of the court and interfering with the pOlo session of R. H. Plant, as receiver. Motion granted. Calhoun, King &; Spalding, for plaintiffs.
EAST TENNESSEE, V. &G.R. CO. 'V. ATLANTA & 1'. R. CO.
Marion Erwin, for R. H;Plant, Henry R. Jackson and John L.Tye, for'attachment defendant.
SPEER, District Judge. It appears from the record and other evidence before the court that at 40 minutes after 9 o'clockon the 9th day of February we signed an order directing R. H. Plant, as receiver of the circuit court, to take possession of the property of the Atlanta & Florida Railroad Company. The order was granted upon consideration of the bill before the court, and in view of its sworn allegations. Mr. Plant, through his agent, immediately proceeded to take possession of the proP'" arty as directed, and, according to his report, verified by oath, his agent and representative was in actual custody in the office of the company, the officers present having been notified of the· order appointing him, when T. W. Garrett, superintendent of the defendant corporation, entered the office, and, having been informed by the agent of Mr. Plant of his possession as receiver, declined to recognize the same. Mr. Garretfinformed the agent of the receiver that he himself had been appointed receiver by the state court at 10 minutes after 11 o'clock. . The order put in evidence here by the respondent indicates that the appointment by the state court was made at 15 minutes after 11. Then, in the presenceof the agent of Mr. Plant, Mr. Garrett went to the telephone, and notified a Mr. Humphreys that he (Garrett) had been appointed receiver, and directed him to recognize his authority. At this time the receiver of this court had been in actual possession for some time; how long, it does not distinctly appear.. It is therefore evident that the receiver of this court was appointed nearly two hours before the order appointing the receiver of the state court was granted by Judge CLARKE; and, further. that he was actually in possession when the receiver of the state court.came in,announced, his appointment, aud attempted to .take possession. It is inSisted, however, thaUhe bill in the state court was pending for quite a while before the bill in this court was filed. But it is perfectly evident that it was an amicable proceeding, to which certain creditors and the road were parties, with no immediate purpose to ask for the appointment of a receiver. One of the learned counsel,Mr. Jackson, who has opposed this motion, who appears now for the respondent, and who states that he represents large interests in the bill in the state court, has stated in his argument here that the bill before that court was an attempt to "nurse the struggling little road into success," apd he stated ,further that at various times counsel for and against the bill bad consulted, and hl;ld endeavored, with success, to prevent from appointing a receiver. No rule nisi, calling upon the .defendants to show cause why a receiver should not be appointed, had been issued; and yet, notwithstanding these admitted facts, in two hours after the United States court had acted, we find that an order, granted by the consent of the parties, was taken, appointing a receiver of the state court. On the pther hand. the bill. brought iQ the United States court is pre-sented at the instance ofcreditors for aJarge amount, who appear to be earnestly insisting upon the payment oftheir debts. If it be true, as v,49F.no.8-39
the bill alleges, that the &,Ge.Ol'git. Baill'Qad Western BaiJ:road lArlabama;;tbaplaintiffs, are creditors of the Atlanta & Florida Railroad Company, must they be d.rted -:i:he,.pnvilege. of applyingtQIl, forum w,hiol1 a right to.seeJt:, because there hils :been in the state oourt an ami1::able bill, "nutse" their' d.ebtor into prosperity? .' Is it oompetentby a procei:ldiogof ,that oharacter for a. (pQrtiollof thecreditots· to take oharge oflitigaiion inv.olving the entire opmpanyto"atand ofpt otbel':creditors,urge the CO,ul:t,·to. delay the.relief'M'hichthe. bill ently seeks. 8.UQ. then invoke the :doctriQe, ()f earnest theoreditorstq relieLelsewhere? We think not. To, QpplYjtlbedootrineof comity to ,such facts,would seem unwarrantable. "cN6r".do6sthe mere ,pendency. of the bill in,.thesta.teoourt in itself deny!tothis :court the power of appointing a receiver where.it has jurisdietibn:Of the parties,and itsillction is otherwise proper. Nor willlsubh pend.:ency a6"oot,the titleof"the receiver of this court. The title,of .· bn his :a.ppointment, dates baok to the time of grantingltheotder.· Rec.par.20Q.. In .cases.ofconflicting appointmeetsrthe courts will inquire of appointment, and,if ,wilUake into: 4Qllsidel1llitit>nfractionsof the day. Id. 232. While courts of equityha.ve' insH;ted upon. the doctrine of lis lJendem, they it ;dlftiault, and often inequitable, to force it. Id.. 200. The rule upoD,that deducible froIll the dElcision ofthe.supreme,oourt in Bank v.:Pru8tets j 63 Gil. 552, where the court (JAOKsoN,iJustice,delivel'ing the:opiniQn) uses this language: "But ill would;!seemherelthat the bill has been pending here for a longthne ln the courtpfthe Statps. aop.norecejveris yet ever wiU ,Js;the judgment creditor to wait until ontl is to, beapPolOted l' lIe is not even .in thi!! case mllde 'll. party to the bill. il1the l,Jlllted. Stlltes 'pourt.. If he were, and if the bill,there filed Wall similar wihi,s and accomplish the sameenn, the collt'ction of this debt by' thejudgment·creditor, having the final process of the state 'COlut ,in ,bis hands, even then we should rule that neither law nor equity Dorc\>mity would require,:ttle court to wait upon the United States court in case like this." , . '. Theapplicati6n of that decision is that neither law, equity, nor comity will requh'e theUnitedStatesoourtto wait upon the state court in lI.ease like this.'; . In 8i very ca.refullyconsideredcl\Se, Mr. Justice BRADLEY, while presiding inthia circllitfgll,Ve a controlling definition of the law. In WitM VI RailmaJdOo., f2 Woods, 426, the learned justice used this language: "This thinlt.is :tbis: not whlcbaction was first commenced, nor which c8use.otautloD hsa' priority or superiority, butwhich,eourt first acqUired jQrisdictipn:OYer tbeprqperty. county court had the power to s?,;an4;,didpot invade the possession (lr bon (lOhIS cllurt. itsp(lssesslon Will !npt 1:)e interfered :with by this cou.rt. The partieilniust ei tJiet gd 'to that· court, ahd pray for the ;removal of its hand. or, haVing procured' an'tidjudi'cation of th!eir rigbts in must wait till the ,action of that court hilS been 'brought to a close,andjudicial' possession has ceased. Service of process gives jurisdiction over the' persoD.""'-Ileizure
EAST TENNESSEE; V. & ,G. R.CO.V. ATI,ANTA &: F. B. CO.
gives jurisdiction over the:propertYl and. un:tirit is seized. no matter when the suit was commenced; ,the court does not have jurisdiction." In this the jlldge of this district, now retired I concurred, and, in its support Justice BRADLEY cites many authorities, which"he states:have been"somewhat carefully consulted." In addition to these it will be instructNe to refer to Barton v. KeYes. 1 Flip. 61; LeVi 1 Fed. Rep. 206; Walker v. Flint, 7 Fed. Rep.4at; Erwin v.Llwry, 7 How. 172; Gri8wold v. Railroad 00., 9 Fed. R.ep.?97;. CuveU..v.Heyman, l1,I,U. Sup. Ot.Rep. 355; Reid:ntter v; Oil-Oloth·(Jo., 112 U. 294. 5 Sup. Ot.· Rep. 135. It is insisted, however, thaf'the supenor court onhe state had taken control of the property, because, upon anamendment to the bill therein pending, alleging that the officers were permitting a use of the corporation funds for private purposes, it had' granted a restraining order enjoining the officers of the road from permitting the use of its funds for other than the purposes of the corporation. This, however, was nothing more than an order to restrain actual or threatened malfeasance of an officer or officers of the corporation, and was in no sense a seizure of the property itself. It indeed was a distinct reCognition of the fact that the officers were yet in control. Otherwise, no injunction would have been issued against them. The sole remaining objection to the order apparently necessary to enforce obedience to the decree of this. court is that the circuit court of the United States for the northern district of Georgia has exclusive jurisdiction of the controversy presented by the bill, for the reason that the principal office of the company is in that district. In support of this proposition it is urged that in the case of Banking Co. v. Seymour, 53 Ga. 499: the supreme court of the state held that section 3406 of the Code of Georgia imperatively requires that the suit must be brought in tbecounty where the principal office of the company is located, unless it is upon a contract made or to be performed in some other county. It is, howevel", true that the residence of a railroad oorporation in Georgia is not restricted to the county in which its principal office is situated. In the case of Da/;i8v. Banking (1)., 17 Ga. 323, it was held that such a corporation is a resident of the entire state, and an inhabitant of all the counties through which the road runs. This decision had under consideration the act of the general assembly now embodied in section 3406 of the Code. This allowed suits to be brought against railroad companies in any county in which a ,tort sued for was committed, or in which a contract declared on was to have been performed. This statute they held not to be in conflict with the provision of the state constitution, then of force, which declared that no person shall. be sued elsewhere than in the county in which he resides. The doctrine of the case in 17 Ga. was reaffirmed in Railway 00. v. Oaks, 52 Ga. 410. In that case Judge MCCAY, for the court, observed: "We do not care to go over the elaborate argument of Judge BENNING in the case of Dacia v. Banking 00·· 17 Ga. 836. There was a unanimous decision of this court upon the conformity of these laws to the constitutioD
FEDERAL, REPOFtTER I
requiring suits to be brought tn the county 9f the residence of the defendants. The argument is full,· exhaustive, and, ipour jUdgment, conclusive. law of this state, and The position it takes has ever since been taken as we approve of and adopt it. II '
, "The supreme court of the United States, has declared in several cases that, corporations are conclusivelypresurned. to be residenta of the states in which they are created. Railroaq 90. v. KoOntz, 104 U. S. 5j Ex parte $chollenberger, 9q p. S. 369j ,J!.ailroad Co. Letson, 2 How. 558. In Engine, etc.:, .po. Er:i,eR. (J0.,10 Blatch!. 307, It was held that railroad are to be regarded as resideijts qfeveQ' district ,of the state, of., domicile, in which they own property. and exercise, their In the very recent case of U. S. v. ftailroad Co., 49.Fed. Rep. 297,Justice HARLAN, in, the northern district of California, beld 'that a. railroad corporation doing business in a distrlctbecomes an inhabitant of' the district. The learned justice points out the obvioU13 fact that, if the construction of the statute insiste<\;uponby the counsel for defendant is maintainable, it would effect\la1ly jurisdiction9fthe.se courts in all against joint defendants where a necessary party lives out of the, district in which the suit is pending. It. moreover, 4eld, in the western district of Texas, by Judp:e MAXEY, in Zammno v. Railway 00., the suit is maintain,aple}n a district where the road runs, although the principal office was located in another district. This is reported in 38 Fed.. Rep. 449, and was followed in the caSe of Riddlev. Railroad Co., 39 Fed. Rep. 290. .. It moreover appearsto,1;>etrue that)Vhere there is the proper diversity of citizenship which will give the,circuit court of the U1).ited Statesgenera! jurisdiction of the controversy, andwhere the feder,alstatute confers s ylect within wh,ich ,the suit can upon the platntiff a be the laws ,of the state!egplating the venue as to suits in the state COll,rts willllot have theeft'e(lt to restrict the territorial jurisdiction of the federal courts with,in limits more narrow than those prescribed by the aqts of congress. Cowles v. ,Mercer Co., 7 Wall. 118, 122; Railway Co. v. Whitton'B Adm'r, 13 Wall. 271; lrumrance Co. v.MorBe, 20 Wall. 453; Dp,vf,a v. James, 2 Fed. Rep. 618. . The ,pill beforethe alleges that the Atlanta & tlorida Railroad Comp!lny if? a corporatioIl under the laws of Georgia, and a citizen thereof, and that, the plaintiffs citizens of the other states named; that the railroad for which a receIver is asked, is located in both districts of the state. One terminus of the completed portion is Atlanta, in the northern district, and the. other Ft. Valley, in the southern ,district. The larger part of the completed portion, as well as of that projected and surveyed, but not completed, is in the southern district. The proper diversity of citizenship to give the court jurisdiction is apparent. The act of congress, prescribing the place where a person,may be sued. is not one affecting the general jurisdiction of the courts. It is rather in the nature ofa personal exemption in favor of the defendant, and it is one which he may waive. Ex}Janie Schollenberger, 96 U. 369. Asfj.gJlling, for the present, that the,defendant corporll,tion wiltwaive noth-
EAST TENNESSEE, V. & G. R.
ATLANTA & F. B. CO.
ing, it becomes important to determine, by an analysis of the line of statutes upon this subject, Whether jurisdiction has been affirmatively conferred upon this court. The eleventh section' of the judiciary act of 1789, following clauseswhich conferred jurisdiction on the circuit courts in all suits of a civil nature at common law and in equity, on account of diversity of citizenship, federal questions, alienage, etc., provided as follows: "But no person shall be arrested in one district for trial in another in any civil action before a circuit or district court. And no civil suit shaH be brought before either of said courts against the inhabitants of the:United States, py any origi nal process, in any other district than that Whereof he is: a,n inhabitant, orin which he shall be found at the time of serving writ." 'See section 730, ,Rev. St. . ." · The next provision upon this Elubject will be found in the act of ¥ay 4, 1858, (11 St. at Large, p. 272.) That act contained but two ,sections, both of which relate to the locus of suits where there are more than one in the same state. The first of these sections provid",d where there is more than one district in a state, the suit, if not of a lOCal nature, and if against a single defendant, must be brought in the district where the defendant resides; but, if there are two or more defendants residing in different districts of the same state, the plaintiff may sue in either district. Vide section 740, Rev. St. And, in suits of a local nature, where the defendant resides in a district in the same state differ;entfrom that in which the suit is brought, the plaintiff may have orig,. inal process against such defendant directed to the marshal of the dil'\trict in which he resides. Vide section 741, Rev. St., The second eection provided: "That, in all cases of a local nature, at law or in equity, where the land or other subject-matter of a fixed character lies partly in one district and partly in another within the same state, the plaintiff may bi"ing his action orsuit in the circuit or district court of either district,and the court in which it is brought shall have jurisdiction to hear and decide it, and t6 calise mesileor final procesllto be issued and executed as fully as if the said subject,.;matter were Wholly within the district for which said court is constituted." Vide section 742, Rev. St. This, as we shall presently see, is still the law, and expressly controls the question now under consideration. The several provisions above enumerated have been embodied in sections 739,740,741, and 742 of the Revised Statutes, all manifestly relating to cognate topics, and designed to confer jurisdiction in the special cases to which they refer. By the act of congress of June 1, 1872, (17 St. at Large, p. 198,) it was further provided that, in any equity suit to enforce any legal or equitable lien or claim against property in a district in which the defendant is not an inhabitant, or is not found, or does not voluntarilyappear, it shall be lawful to serve the defendant by personal service on him, wherever he may be, or to make service by publication. In case he does not appear, the effect of the judgment is restricted to the prop'erty in the district. These provisions are embodied in section 733 of t he Revised StatU'tes. This statute had the ·effect to extend thepr(j.
visionsofthatpottionof the act, of May 4, 1858, which is embodied
.j,Jl section 741 of tbeRevised Statutes, to the case of a defendant'resid-
ingQutof thestate,but who was interesled in pllopertyof a local natut:e,within the jurisdiQtion, which the plaintiff w8sseekingto subject to a legalor equitable lien. It; did not enlarge or otherwise affect the the court in the "suit of a local nature,» for which section 741 of the Revised Statutes provided, but it merely furnished thepr.pcedure by nJ.eans of which the non-resident could be legally served and made a. party to the judgment,so far as it affected the properly actually within the operation of It legal or eq1,litable lien or claim which the court had' dtherwise jurisdiction to enforce against it. Before the' enactment' this statute we can well understand how, in many instances, the court was unable to ltflord relief to which suitors were obviously entitled; where the n.on-resident dafEmdant owning property in the district could not be served a.rid would not voluntarily appear. Vide Brightford v. liuddingtO'n, 12 mitchf.237. The provisions of section 788 'of the Revised Statutes were afterwards enlarged by section 8 of the act of March 8, 1875, which is still of force. To;summarize the result of our examination, it appears that, when the revision of the statutes had bean made, the following provisions reiati\l'eto the locus of suits in the circuit court were in full force: Firat. The provision in the eleventh section of the judiciary act, that suits ofa civil nature should be brought in the district .of which the defendant was an inhabitant, or in which he might be found. This has beim embodied in section 739, Rev. St. Secri1ld. That suits not of a local nature, where there are joint defendants residing in different districts of the same state, might be brought in either district. This part of the act of 1858 is expressed in section 740, Rev. St. Third.· That in suitsQf a local nature, where the defendant resides in a. district in the same state different from that district in which the suit is brought, the plaintiff may have original process sent into the other district, and served upon the defendant there. This clause of the act of 1858 was embodied in section 741, Rey. St. FO'll.rth. That suits or a local nature, where the land or other subjectmatter ()fafixed character lies partly in one districl and partly in another within the same state, may be brought in either district, aud the court in which they are brought shall have plenary jurisdiction to hear and decide them, to issue and control the process, as if the subject-matter were wholly within the district for which such court is constituted. The compilers embrace this clause in section 742, Rev. St. Fifth. The provision. for procedure to effect service. upon defeudants in suits of a local nature, where the defendants are out of the territorial jurisdiction of the. court, so that the judgment can be operative upon the property within such jurisdiction. This provision was made by act of 187.2, and is embodied in section 738, Rev. St. " !tis contended, however, by counsel who resist this motion, that all these special provisions relating to suits brought in 'states where there
V· .t ,G. R. CO.
".ATLANTA & F. R.
are more than one federal judicial distri<itweresuperseded by the provisions of section 1 of the' ltilt· Of March 3, 1875. This, they clliirri, was intended to cover the and to'indicate the locality-in which civil suits in the circuit and district courts might be brought. They rely on the language"No civil suit shall be brought before either of said courts against any person, by any 'original process or procedul'e, in any other district than that whereof he is, an inhabitant, or in which he is found at the time of serving such process." They.'insist, moreover, that the amendatory acts of March 3, 1887, and August 13, 1888, had the effect to repetl.l these provisions above enumerated by implication. Let us consider these propositions in the order of their statement. An analysis of the first section of the act of March '3, 1875, makes it apparent that it is a substitute for the eleventh section of the judiciary act of 1789, the provisions of which, ,so far as they confer generaljurisdiction ontbe circuit court, were embodied in subdivisions 1, 2, and 30fsection 629 of the Revised Statutes, and, so far as they prescribed the appropriate'district in which the suit might be 'brought, were embodied in section 739 of the Revised Statutes. Amel v. Hager,. 36 Fed. Rep·. 129; (J.,B. v. Moony, 116 U. S. 104, 6 Sup. Ct. Rep. 304. That act contained no provision covering the special cases provided .for in the act of May 4, which, we have seen, is embodied in sections 741,742, .Rev. St., which relate to joint ants in different districts of the same state, and to suits of a local nature affecting property within the jurisdiction. It was not the intention of congress, by. the act of March 8, 1875, to do away with all the salutary statutes conferring special. jurisdiction upon the circuit and district courts. "The intention of the law-maker constitutes the law. A thing may be within the letter of a statute and not within its meaning, or within its meaning and not within its letter. In cases admitting of donbt, the intention of the law-maker is to be sought in all the of the section, statutes, or series of statutes, in pari materia." This Ian. guage is used hy Mr. Justice SWAYNE, for the court, in the case of Atkins v. Disintegrating 00., 18 Wall. 272; and the learned justice applied the doctrine by the announcement that,although an admiralty case is a "civil suit," the prohibition in the eleventh section of the judiciary act bad no reference to it. A decision more directly in point is the case of U. S. v. Mooney, 116 U. S. 104, 6 Sup. Ct. Rep. 304, where Mr. Justice WOODS, in delivering the opinion of the court, used the language fol· lowing: "How, then, can the substantial re-enactment of section 11 [of the judiciary act] by the act of March 8, 1875, with modificatiouB immaterial, as far as the question in hand is concerned, have an effect which tbe original sectioD did not? ... ... ... To sustain the contention of· the plaintiffs, we must hold that the purpose of section 1 of act of March 3, 1875, was to repeal by implication, and to' supersede, ·all la ws conferring jurisdiction on. the circuit courts, and, of itself, to cover and regulate the whole subject. But this con-struction would lead to consequences which it is clear copgres8 did not contemplate. The act of 1875, it is clear, was not intended to interfere with the
prior statutes 'conferring jurisdiction upon the circuit or district courts in specia.l cases and over subJects. Its purpose was to give to the circuit cour,ts a.jurisdictio\1 whlcp the federal courts did not then possess, by enlarging theft' jurisdiction in suits of a civil nature. in common law or in equity. and not to take away from,the circuit or district courts jurisdiction conferred by prior statutes."
, That the scope of the first section of the act of 1875 was to he limited to the general jurisdiction of the courts, conferred by the. eleventh section of the judiciary act. was distinctly held by Circuit Judge SAWYER in 'Ames v. Hager, 36 Fed. Rep. 129j by this court in U. S. v. Shaw, 39 Fed. Rep. 433j and by Judge BARR, in Kentucky, in U. S. v. River Mills, 45 Fed. Rep. 273. It follows, therefore, that the special cases for which provision was made by the act of May 4,1858, embodied in sections 740,741, and 742 of the Revised Statutes, relating to the locality of suits in the states containing more than one district, were not within .the contemplation ofcongress when that act was enacted, and are not peale<Lby it. The language of that act, so far as it requires suits to be brought in the district of which the defendant is an inhabitant, or in ,which he is found, is not at all different from the eleventh section of the judiciary act. This was co-existent with the act of 1858, and, as we have seen, was embodied in section 739 of the Revised Statutes by the compilers, as an independent provision, not at all in conflict with the legislation conferring jurisdiction, and making it effecth'e in the special cases indicated in sections 740, 741, and 742 of the Revised Statutesj all of which were re-enacted by the adoption of the Revision simn] . neously with it. The provisions of the act of March 3, 1887, and of August 13, 1888, amendatory of the act of 1875, in respect to thequestions under discussion, are in no particulars different from the latter act. These recent statutes, therefore, are likewise within the range of the authority of U. S.v. Mooney, trnpra, and, in the opinion of the court, :clearly did not repeal sections 740, 741, and 742 of the Revised Stat·u:tes. ,It is moreover true that,' if we trace the same provision through the numerous acts of congress passed since the act of 1875, and since the nct of 1888, whereby other divisions of judicial districts are created in ,the several states, it will be observed that suits ofa local nature are al,ways .excepted from the provisions 'changing the locality of suits, orrequiring subsequent suits against its residents to be brought within the ,new divisions. It insisted, however, by the learned counsel for the plaintiff that this is not a suit of a local nature, within the meaning of the act of congress·... To t1;lis ,proposition the court cannot assent. We are controlled by the averments of the bill. It alleges that the defendant corporation is insolventj that the plaintiffs are creditors; that the only means by 'which they can obtairipayment of their debts is by the seizure of the rltilroad rea,-which is the subject-matter of this litigation. t,l'his railroad is mainly real estate, and is an entirety. A large part of it is actually located within this district. In so far as the assets are ,personal, they are' likewise located here. It is therefore a suit
EAST TENNESSEE, V. & G. R. CO. V. ATLANTA & F. R. CO.
of a local nature, and the fact that a portion of this entirety is in the northern district of Georgia does not affect the local character of the suit. The statute of the state Code (section 3149a) gives to the plaintiffs an equitable right to subject this property to the payment of their debts, which right, it has been repeatedly held, a court of equity of the United States can enforce. To do this, it is necessary for a receiver of the court to take actual possession of the res, to control and administer it, and to do this in the locality in which it is situated. The character of the suit is not doubtful. An attentive examination of all the enactments hereinbefore referred to will, we think, lead to the inevitable conclu.sion that it was not the purpose of congress, by the acts of 1875, 1887, or 1888, to repeal the salutary provisions which enabled the circuit court to, afford relief in any district where the suit is of a local nature, or where the property spugl;lttp be reached is an entirety, and is partly within the district and partly within another district of the same state, or relief as against the property itself, where it is within the district, and is subject to a legal or equitable lien or claim, even though defendant be a resident of another state. It follows, therefore, that the jurisdiction of the circuit court in this, the southern district of Georgia, over the parties and the of this litigation, is foundell upon the fact that the property to be dealt with is of a fixed character, and is located in both districts of the state,e.nd as well upon the general doctrine that a railroad corporation is a resident of the state of its creation, and of each district of the state through which it runs. The case is very unlike one where a railroad is operated in two districts situated in different states, in which ancillary bills should be filed, and orders extending the appointment of a receiver are necessary; but in this case, under 742 of the Revised Statutes, the jurisdiction of this court is plenary over the entire property in both districts of this state. In several cases, notably in the case of Tefft v. Sternberg, reported ill 40 Fed. Rep. 2, we have attempted very carefully to indicate that inp9 case would we encroach upon the proper jurisdiction of the state court relative to the substance of litigation. There the substance of the litigation was the goods which the sheriff had seized. Here the substance of the litigation is the railroad itself. There was a balance, which a ceiver of this court might have administered; but, with a desire to avoid anything like conflict with the state court, we declined to permit the re-; ceiver hereto receive even that balance to which the creditors, whose claims were .in t4e hand of the sheriff, apparently had no right whatever. In a recent case (Candler v. Balkcom) a receiver had beenappointed by Judge CLARKE a short time prior to a similar appointm!;lnt of this court, and that receh'er, by telegraphic instructions of his appointment, had taken possession of the property a few minutes before the receiver of this court attempted to take possession. Therein, in a case parallel to this, we declined to interfere with the state court, a.nd the bill was dismissed. There are, however, cases occurring where the court feels obliged, and will hereafter feel obliged, to support its author-
ity.and.: its officers: in carrying out its judgments; and this is one o(th(i)secases. The court bas attentively considered the arguments of counsel for respondent, bu' is unable to . reach a conclusion differing from that !InI,lounced upon. tbehearing on the application for the rule nisij nor is the answer for defendant in any respect sufficient to exonerate him from the legal consequences,of the defiant attitude which he has taken towards the proper order of ·this court itl ,a matter of which it had both prior and plenary jurisdiction: While the announcement is made with very grE".atreluctance, the duty devolves upon the court to make the rule ab"IOlute, and cause the Ilottachment to issue against the defendant, direct· ing tbemarsbalto arrest and commit him for his contemptuous disregard of tlw d,ecree oOhe court. If there is further disobedience on the part wbatsoever,tbe court will grant a writ of assistance ,the marshal to. take actual possession of the property of the defendant c»rpora.tion. It will be so ordered.
PABB:' BROS. &: Co" Limited,
11. KELLY AXE'M'ANUF'G
Coun Qf Appeatl, SI:tth
January 29, 1892.)
Ji. .ileinulrer to an answer plalntlff'a power to make the· contract sued upon doea not'admit the fact.a therem iilleged, ao as to make the'm part of the petition; alldit is error. forthe'court, on overruling the demurrer, to regard them as part ot the petition, and disiniss the auit.
.. Lnrt'TBD P&KTNBRSHIP8--CoNTRACTIlo
Al.tboughAct Pa. June 2, 1874, 5 5, limitathe liablllty of partnerships formed thereunder to $500 on a aingle undertaking, unless the same ia in writing signed by two manageI"S, yet a failure to so sign a contract for a larger amount will not prevent the Pllrtnership troltl suing thereon when it has made or tendered full per' .
.. S£MIII-'-'CbNftAOTBT AGliNor-RATIJ'IOATION.
6" B.uut.'. . The bringing of a suit by a limited partnership on a contrBOt made by an agent is a ratification of its terms. I. CoNI'LJOlrOJ' LAWs-CONTRAOTIl-LunTBD PARTNBRSHIPS. The legality of the execution of a contract made in Kentucky by an agent for a limited partneI"Ship organized under the laws of Pennsylvani!'t iii a suit brought in the fOrmer state, la, to be .determined by the laws of KentuckY. and not by the act underwhiph the partnership was created.
The lIJlegation that the contract in suit was made by an agent for the benefit of plaintiif, a, .limited partnership, organized under Act Pa. June 2, 1874, and that it haa smce beell adoptedhy the partnership, is sulllcient to sustain the action; there bema nothing in the statute to :prevent such ratifioation.
Circuit Court of the United States for the District of " ' .' Action by Park Bros. Co., Limited,against Kelly Axe ManUfacturing Coxnpany. Dexnurrer'bYc defendant Plaintiff brings eltor. Reversed. ,'. Humphrev. tti)avie, (or plaiptiff in