,4> LewELJ;. J1AILROAD
" . ;",."
and o.thers, v. BOSTON & im?
,AugWlt 27, 18B!.}
(Oircu# Oou,1't j
Two STATES. A railroad corporation which extended into two 'states, and was originally chartered in each state, and subsequently consolidated by law in both states, does not thereby lose its separate citizenship in each state, so as to preclude it from maintaining an action in the federal court against another corporation, created and existingso:lelyunder theJaws of one of the two states, where the that its c?rporate existence as derived from the other of· said two'litates'.
This bill byJhe Corporation, which is alleged to he a citizen of NcewHampshire, and other citizens of that state, against the Boston & 'Lowell' Railroad Corporati'. It appearj;l that the plaintiff corporation is a corporation, operatiqga continuousrline of ,railroad" which lies partly in Massachusetts and partly in New is,fotmedby the union ()f two distinct corporations, each having the sa.tneIia.me, chartered under the laws of the two states. The ,defl3udants filed,aplea to the j'tirisdic.theAourthad jurisdiction, fortheTreason ijpn., .thef ,n$ iuvplvea 'fJontroversy .between citizens differq.llestion was a.:tgl1ed some time since.. A. BrQQ'-'s, Jor plainti:ff. 1:J. G. Abbotii:8i.lJ.SI,.S.f!.B,. ,..4,1>.qp(t, for, defendant. ·NELso,N,J).J.i .,. Thia'cPi.a.e was argued, at the lastOatober of thiscQurtdtpOD ,the of the defendant to the jurisdiction of the court and Judge, ,LoweJl,0. "J(j! then" to.Qkthe papers for the purpose of deGisj,on,.but S\)Dunfter<Wl1rder'SY,aa in some way led to suppose that the, case, haq.beon. the parties, and so gave it no further consideration. be went abroad he was infanned: nQ,t ,bEien' aditlsted,and he left ,it 'with: me fQJ; de.terqlwat.i,o,n" flQ:/tfllibt'th.e Q.ecision now to bellnnouneed has been reached by myself alone. ,I ,.1 The Nashua & Lowell Railroad Company was separately chartered under the laws of New Hampshire and Massachusetts, and the two corporations so created were afterwards consolidated by law in both states. It has been settled by the supreme court of the United States that corporations created by different states and afterwards
N. & L. R. CORI'.,'tI. 'i!;:& L.-n. CORP.
consolidated, do not become a si:nglE! corporation. for all purposes; but while they may for some' purposes -ttelitM as a single corporation, yet for other purposes they remain separate and distinct corporations. , ,In this case it seems that the' defendant OOrpbl'ation ;might 'go)nto New Hampshire and there sue the plaintiff, as aNew HalllPshire corporation, in the federal court, although it could nclt"bring such suit in the district of Massach:usetts again:st the Ne'\v :Hampshire corporatjon, because ;tlO service upon the New Hampshire corporation as such cowd begot ilithis district, if for no other It has been determined by Judge Lowell that in some cases corporations may be served with process from United States courts in other districts than those in which they were chartered, .and "'here they -are found to be doing, business, or domiciled. But this rule would not"we:suppose; extend to a caSE! like the present. " ' If the defendant could sue the' plaintiff in the federal court iforNEHv Hampshire, notwithstanding the fad- of theplaiiltiff being dhattered under the laws of both seem t,o rio good rg8;son why the plaintiff, olaiming undetits New Hampshire'charter/should not be allowed to sue the defendant in the federaleorirt for' Massa l ' chusetts, as it would be impossible for thedefendarit :in to deny the title of the plaintiff as predicated upon'th 'New Hampshire charter, or to deprive the plaintiff of the benefit of' its New lEamp.: shire citizenship thus acquired. i ; :. I am aware that a different conclusion seems to have' been reached in a case* decided in the eastern district of Pennsylvania, but am not able to concur in the views taken in that case. plea' . i : to the jurisdiction is therefore o"erruled.
-The case here referted to is Johnson v.' P7!i(', Wiz. ported in 1 Am. Law Rev. 457. .
and others v.
(Circuit Court, D. Connecticut. July 29, 1881.)
1. EVIDENCE-BuRDEN OF PROOF.
The burden of proof is. on him who charges a trustee with surcharging and falsifying his accoun ts.
TRUST FuNDS-BuEACH OF TnusT.
A trustee cannot use trust funds for his own profit.
Exceptions to Master'Ei Report. SHIPMAN, D. J. The .first exception of the defendant to the master's report is allowed, on the ground that there was not, in my opinion, sufficient affirmative evidence that the defendant received $125 for the store fixtures. The second exception of'the defendant to the master's report is allowed in Paxt, to-wit, to the extent of $30, and interest thereon. As to the remaining $35 this exception is not allowed.. The third, fourth, fifth, sixth, seventh, eighth, and ninth exceptions of the defendant to the master's report are disallowed. With the exception of the first, and $30 and interest on the second, item contained in the master's report, and the corresponding COl'rections to be made in the computations of interest and in the addition of figures, the master's report is confirmed. The ground of all the exceptions is substantially the same, viz.: that the master erred in this, that he mistook upon whom lay the burden of proof of the items attempted by the plaintiff to be surcharged and falsified in the account of November 17, 1871, and was of opinion that the defendant was bound affirmatively to account for all moneys belonging to the estate which came into his hands; whereas the master should have held and been of opinion that the plaintiffs were bound to prove, by sufficient affirmative evidence, the facts alleged in their bill, and to show affirmatively that the alleged alterations should be made. I am of opinion that the idea of the defendant in regard to the master's action is incorrect, and that the defendant's and the master's theory in regard to the burden of proof was the same; and that, in any eveI}t, the plaintiff affirmatively proved, and the defendant did not disprove, the facts found by the master in regard to each of the items except the first and second.