I'EDERAL REPORTER,
vol. 42. OF
GOilDEN
v.
THE MORNING
N:mws
NEW
HAVEN.'
(OirauU Oourt, E. D. New York.
March 81, 1890.)
WRITe-SERVIOB Olr PROOESS-FOREIGN CORPORA.TIONS-JURISJ)IOTION,OIr STA.TE COURT.
lnan action by a resident of New York against a foreign corporation, which does not,do business, or have office, agent, or property within the state of New York, servo ice ofproooss upon an officer of sucb corporation, while temporarily within this state, does not confer jurisdiction upon the state court from WhlCh process issued,
At Law. On motion to vacate service of process. Plaintiff is a resident of the' eastern district York. Defendant is a Connecticut corporation. The action is for libel, the alleged libelous article having been published in defendant's newspaper. The defendant does not do business here, nor has it either office, or property ,within- this state. Summons and complaint, entitled" In the Supreme Oourtio the County of Kings," served upon Henry W. Farnam, the president of defendant, while temporarily within the state of New .Yor:lr.. Defllndant. petition of removal, and now , set aside service of the summons. The appearances, both in t.he state court and here, were special, and' expressed to be for the sale purpose of ra,ising the objection nOW advanced. :It{;L. rPoi.v1l.s, for plaintiff. ;"': H. B. B. Stapler, for defendant.
'It has this circuit that ser\'ice such as this I J. not confer jurisdiction state court to. render a personal ju:dgment against the defendant, .and .that such judgm.ent, had the case removed, Would be treat'ed in this court as void. Good. Hope . J1ailway Barb &ncing. 00.,22 Fed. Rep. 635. 'fhat deoisi?D. detenhines the question raised hEire. Jv.[otion to vacate service of the prot is granted. .
LA<JJMBE
cess
lRepOrted by Edward G. Benediot, Esq;, of the New York bar.
i.
:m
BE BARRY.
113
In re (O-trcullt
BARRY. 1
Court, B. D. New York. Hay tIS,1m)
L
&.
..
I.
CORPUS-CUSTODY OJ' INJ'ANT. By t.he co=on law, both of England and tbe UnIted States, In virtue of tbe au· tborityof the sovereign as parens pat'l"'f.(e, the writ of habeas corpus will iSSU8 W determine the right to the cuswdy of an infant as between parents, who are 11,.. Ing apart. CoNSTITUTIONAL OF SoVEREIGNTy-PERSONAL RIGHTS. The government of the United States has no inherent common-law prerogative.. It possesses only such 88 are conferred upon it by the constitution, and therefore has no power W interfere in the personal or social relations of citizens by virtue of authority deducible frotnthe general nature of sovereignty. .JURISDICTION 011' FlIDERAL COURTS. The circuit courts· have not. as incident to their constItution 80Il lIuob, any comjurisdiction. 'fhey possess no other jurisdiction than that concurrently conferred by the constitution and congress of the United States. SAME-CONSTRUCTION OJ' ST.lTUTE. The, judiciary act of 1789,(1 U. S. ,St. at Large, c. 20. § 14,) provides "that all the before-mentioned courtSot· the Umted States shall have power to Issue writa of .Cire !aclas, ha,bet;ls corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of theIr respective jurisdictions, and and nsages of law, and that either of the justices of the , agreeable to the supreme'llourt, 80Il well as judges'of. the district courts, shall have power loP grant writs of habeas corpus for the purpose of inquiring into the cause of commitment: prOvided that writs of habeas corpus shall in no case extend to prisoners in gaol unless ,where they aro In custody under or by color of the authority of the Unit.;i States, or are committed. for trial before some court of the or are necessary to be b\'ought into court to testify. " ' Held, the power of the oircuit oourts to issue writs ofhaQea8 corpus is thereby limited W caS8S of commitment under process or authority Qf the United States; and they derive therefrom no authority to issue tbe writ for tbe purpose of determining, as between parents living apart., the right to the custody ci! an infantohild. SAM,E-STATlI LAW TO GOVERN-CUSTODY OJ' INrANT. If, under section 11 of said act, the oi'011it courts bave jurisdictiou of personal rights and duties because of diverse citizenshIp, or the allen age of a 'partYJ.tben, on appllcation of a citizen ofa foreign country residing without tbe united States for 'a writ of habeas corpua to have awarded to him tbe custody of hIs child, as against its mother and grandmother, who are cItizens of the state of New York, tbe court wlll be governed In its l1ecision by the law of New York as determined by its statutes and decisions. BA.ltE-ALIENAGE 01' PARTY-HABBAS CORPUS-CUSTODY OJ' IlI'II'ANT. Under 2 Rev. at. N. Y. p. 466, 5 23, on habeas corpus, and tbe decIsions of tbe court of errors on the same subject, the fact that a motber, haVing in nurture her femaleehild under seven years of age, keeps it from the father, Who lives apart from her, anllin a foreign country. does not entitle Uie .father to a writ of ha.l/e(U corpus to have its custody awarded to him. BAlllUII
Petition for Wtit of Habeas OJryua.
BETTS, J. On the first day of term the petitioner presented in open court and filed his petition praying that "the people's writ of habeas c0rpus ad BUbjiciendum lDay issue in his behalf, directed to Mary Mercein, relict of the late Thomas R. Mercein, deceased, of the city of New York, and to ,Eliza Anna Barry, wife of the petitioner, commanding them forth1 Published by request of one of tbe justices of tbe supreme rourt of tbe United States In connectIon with Ex parte Burrus, 10 Sup. Ct. Rep. 850. wberein It is cited and approved. T):le case was taken to tbe supreme court by writ ,f error, and in an opinIOn QelIvered by Chief Justice TANEY the judgment of t.hecircuit oourt. was alllrmed. BeeBarJ;'y;v.·M,ercein, 5 How. 108.1111,120.
V.421<'. no. 2-8