FEDERA.L REPORTER, vol. 49·
. phlintiff in error insists that the trial judge erred in not taking the case from the jury,and directing a verdict for the company, because, as it contends, the undisputed testimony showed that Amato wItS guilty of culpll:ble negligence, which brought about the accident. He testified that" he was walking at his ease, not thinking of anything," and did not see the engine when it came on the straight part of the bridge; but also stated that he "never thought of it, for the reason that the boss told him there was nothing to come across." We are of the opinion that it was fairly a question for the jury to determine whether or not it was negligenceon his part not to keep a lookout for a coming engine, in view of the boss' assurance that there was none to come. The case is quite within the decisions in Bradley v. Railroad Co., 62 N. Y.99,and Oldenburg v. Railroad Co., 124 N. Y. 414, 26 N. E. Rep. 1021. The judgment of the circuit court is affirmed, with costs of this appeal. ,.
GILBERT et ale
NEW ZEALAND INs. Co.
Oourt, D. Oregon. March 21, 1892.)
That the term "inhabitant, " as used in thetirst section of the jndiclary act, In. eludes a foreign corporation, engaged in busincss in the district in whioh it is sued, according to the laws thereof.
II. FOREIGN CORPORATION.
. A foreign eorporation, engaged in business in any state iJ;1 this Union, who, in pursuance of the laws thereqf, appoints an attorne.f, with power to receive service 'of process in any suit. against it, thereby consents 10 advance to be sued thereon.
AtUw. Mr. LewUL. McArthur and Mr. Tilmon Ford, for plaintiffs. Mr. J088[Jh Simon, for defendant.
DEAD'lt,District Judge. This action is brought by the plaintifl's,citizens of Oregon, against the defendants, a corporation organized under the laws of New Zealand, and alleged to be an "inhabitnIit" of the state of Oregon, to recover an lilleged loss by fire of $3,500, against which it had insured the plaintiffs. The firstcoclplaint merely stated that the was a New Zea:land corporation, and plaintiffs were citizens of Oregopj and on this it was contended that the parties were "citizens ofditlerent states," within the meaning'ofthosewords in section 1 of the judiciary act, (Supp. Rav. St. p. 612,)arldtherefore the court had jurisdiction. · ", . On demui'l'ertt> the complaint, the court held these words did not include analietlsbbject or cotporation, but were coiifinedto citizens of the Union. .., . The plaintiffshnd leave to amend,and now allege that the 'defendant in 188S-engaged in the fire insurance business in Oregon, and, purBuant to the laws thereof concerning foreign insurance compa.I1ies,'depos;.
NEW ZEALAND INS.
ited with the treasurer thereof the sum of &50,000, and filed with the insurance commissioner its power of attorney, whereby it duly authorized a proper person to accept service of process in any proceeding in any court of the United States therein, and thereupon received a license and has ever from said state to engage in such business, and since maintained a place of business therein, and is now an inhabitant thereof, doing business therein as a fire insurance company, according to the laws of Oregon. A demmrer was interp'osed to the amended complaint 6n the ground that the defendant, being a foreign corporation, is not an "inhabitant" of this state, and cannot be sued therein without its consent. On the argument counsel for the demurrer cited Hohorst v. Packet Co., 38 Fed. Rep. 273; Booth v. Manufacturing Co., 40 Fed. Rep. 1; Purcdl. v. Mortgage Co., 42 Fed. Rep. 465; while counsel for the plaintiffs cited Zambrino v. Railway Co., 38 Fed. Rep. 449; Riddle v. Raill'Oad Co., 39 Fed. Rep. 290; Miller v. Mining Co., 45 Fed. Rep. 347. The last case was decided in this court, in which I held, in the language of the syllabus: "A foreign corporation may be an ·inhabitant' of a district or county other than that of wbich it is a citizen or subject, or wbere it was organized, within the meaning and purpose of the term. as used in section 1 of the judi·ciary act." At that time I had before me and considered the first three of the ahove-cited cases, which hold otherwise, but was not persuaded by them. Since then I have not seen nor heard anything to my opinion, but much to strengthen and confirm it, in an opinion delivered by Mr. Justice HARLAN in the case of U. S. v. Railway Co., 49 Fed. Rep. 297. The case arose in the northern district of California, and was heard under section 617 of the Revised Statutes. In the course6f his opinion Mr. Justice· HARLAN said that no "case in the supreme court of the United States directly decides that a corporation may not, in addition to its primary legal habitation or home in the state of its creation, ao. .quire a habitation in or become an inhabitant of another state for purpose of and of jurisdiction in personam;" and holds that the ·defendant-a corporation created under the laws of Kentucky,. but doing business in California pursuant to the laws thereof-is, for the time being, an "inhabitant" of said state, within the .meaning and purpose .ofthe clause of section 1 of the judiciary act, .which provides that "no .civil suit shall be brought before either of said courts [circuit] against .any person by any original process or proceeding in any other district than that whereof he is an inhabitant." In Bank v. Deveaux, 5 Cranch. 88, it is stated by Mr. Chief Justice MARSHALl, that the word "inhabitant," in. the statute of Hen. VIII., .concerning bridges and highways, which' provides that the same shall be made and repaired bytbe"inhabitants of the city, 8hire, or riding," was held to include a corporation that had lands within said oity, shire, . .or riding, although it might reside elsewhere.
. The of thia distriot within the meaning of the.,etatutEl.!, " ' . . wiD lie in this oourt, on the ground of the consent of the Section ,l,ofthe Judiciary aQt gives this court jurisdiction of such actionsas this,. generally, in which there is a controversy between citizens of aSUlte AIot:ld,wreign citbens or subjects; and the clause concerning inhabitancy orily restricts the right of the plaintiff to.sue the defendant in the district ofwhich the latter is an inhabitant; But the defendant may Wl1ive this privilege, and consent to be sued in a district of which he is not an inhabitant. Ex parte.&:hollenberger, 96 U. S. 377jRailway v. McBrid6, 141 U. S. 130, 11 Sup. Ct. Rep. 982. A foreign corporation, such as this defendant is, before doing business in this state, is required by the, laws thereof to execute a power of attorney, and file aeopy of the same with the insurance commission, and cause it to be recorded in,the clerk's office of each county where it has a resident IlgenJ; appoint some citizen of the state its attorney thereby. empowering him to accept service of all writs and process necessary to give complete j\1risdiotion of such corporation to any of the courts of this state or of the United States,courts therein; and shall constitute such attorney the authorized agent of such corporation, upon whom lawful and valid service may be made of all writs and process in any action, suit, or proceeding commenced by or against such corporation in any of the courts mentioned in this section, and necessary to give such court complete jurisdiction thereof. Hill's Code 1887, §§ 3276. 3277, 3.1)73. And now it appears by the return of the marshal on the summons in this CRse that he served the same on the duly-authorized attorney of the defimdant, as appears by the power of attorney recorded in this county. , This is all that is necessary to give this court complete jurisdictiun of the defendant in this action; and to this it consented in advance, when it ,executed ,filed,and recorded this power of attorney. In effect it said to everyone WithwholU it did business: "Although I am an alien, and not liable to be sued in this district without my consent, I hereby conto give any court in which sent to be served with process therein,so Iroay be sued complete jurisdiction of the action." The casE'lfaUs within- the ruling in Railway Cb. v. HarrUt, 12 Wall. 81, in which Mr. _Justice SWAYNE, speaking of a corporation, said: "It cannot migratl', but it may exercise its authol'ityln a fort'ign territory upon such cQn.ditfons as lJlay oe prescrihed by the law of the place. Oue of these be that it spall consent to be suell there." Of course, I must not he understood to say that a corporation can, by its consent, give this court jurisdiction of a controversy which congress has not, as where the matter in dispute does not exceed the value of $2,000. The demurrer is overruled on two grounds: (1) The defendant, under the circumstances, is an inhabitant of the district; and (2) if this be erwise, it has consented to be sued herein.
HENDERSON v. GOODE.' HENDERSON et at
GOODlt et al·· (HOME INS;' Co.
et al., Interveners.) .
(Circuit Court, E. D. Louilriana. April 9,1892.)
MORTGAGE PIUVILEGES-PRIORITIBS-EXEC1:tTORY PROCESS.
Even if a mortgage, given to secure the purchase price of property in Louisiana, has become perempted, the vendor's privilege survivell,and the assumption thereof by a new purchaser continues the same against him, and upon the property, outrankinj;( even that of the second vendor; and, such .assumption is executed notary and two witneBBes, executory proces&, will Issue under Code PI'. art& 782, , When the United States court has jurisdiction over the caUII6 and the res, other parties, whose citizenship would not have allowed them to institute the suit, may lutervene to assert their rights in the relI, but they cannot have original process.
I. 1l'EDlIRAL' CoURTS-JORISDIOTION-CITIZENSIJIP.
In Equity, Bill by William Henderson and others against Lenore W. Goode and others to enjoin executory process. ' Henry L. La1£1,T'U8and Horace E. Upton, for complainants. Hugh a. Cage, for Mrs. Goode. CarroU Carroll, for, Crescent Insurance Company, intervener. Brm.one Clwate, for Home Insurance Cbmpany I intervener. W. 8. 'Benedict, for Julius Schwabacher, intervener. BILLINGS, District Judge. This is a bill in' equity to enjoin an executory process. The defendant Mrs. Goode obtained an order of seizure and sale,under Code Pro art. 732. The Home Insurance Company, the Crescent· Insurance Company, and J. M. Schwabacher have intervened, each c1uiming rights as mortgagee; and the two first interveners asked aud obtained additional executory process. The facts necessary to an understanding of the issues are as follows: In 1881 the defendant Mrs. Goode sold and conveyed to Bisland the" Aragon Plantation." For a portion of the price he executed to her a mortgage upon the same in 1881, but has for $17,074.60. This mortgage was properly never been reinscribed. In 1885, Bisland sold and conveyed toCalder, $16,67,5.12 of the purchase who, in the notarial act of transfer, price remaining due from Bisland to Mrs. Goode. This notarial act was, in 1885, recorded in both the conveyancing and mortgage offices of the proper parish. Calder has gone into insolvency,' and the complainants are his syndics. The complainants, as ground for the .injunction asked, urge that the original mortgage frO):D Biillarid to Mrs. Goode, not having been reinscribed, has become perempted,and cannot be the basis of an executory proqess. But this is a process based upon the assumption by Calder of a portion of the original Even if thi!! mortgage to secure this price had become perempted, the privilege of Mrs. Goode, .as vendor, still survived j;\gainst the property, and was assumed by Calder before a notary, in the presence of two witnesses. The Code .of Practice. authorizes execiltory process wherever a mortgage privilege exists in favor of the creditbr, which is evidenced by a notarial before a notary and in the presence of two witnesses. Articles act '732,733.' This proof exists in this case. '. The case of Dejean V. Bel'bert,