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1888, a corporation incorporated in one state only and having a usual place of business in another state cannot be sued in a circuit court of the United States held in the latter state by a citizen of still a third state. Ex parte Shaw (1892) 12 Sup. Ct. 935, 936, 145 U. S. 444, 36 L. Ed. 768.

A corporation organized in one state only cannot be sued in a federal court for any other state except by a citizen of the latter state, unless it waive its privilege. Rust v. United Waterworks Co. (1895) 70 Fed. 129, 17 C. C. A. 16.

Federal court will take jurisdiction when plaintiff is a resident of the district wherein he brings suit, and defendant a corporation created by laws of a foreign state. Rawley v. Southern Pac. R. Co. (C. C. 1887) 33 Fed. 305.

When the jurisdiction arises only from the fact that the plaintiff and defendant are citizens of different states, suit may be brought in the court of the district in which either the plaintiff or defendant resides; and, where défendant is a corporation organized under the law of another state, but maintaining an office in the state wherein the plaintiff resides, suit may be brought in the court of the latter state. Minford v. Old Dominion S. S. Co. (C. › C. 1891) 48 Fed. 1.

The federal courts have jurisdiction, on the ground of diverse citizenship under this section of an action against a foreign corporation, brought in the district in which the plaintiff resides, when such corporation is subjected by statute to the jurisdiction of the courts of the state in which the district is located. Dinzy v. Illinois Cent. R. Co. (C. C. 1894) 61 Fed. 49.

A corporation, which is a citizen of New York and carries on its business through an agent in the Southern District of Georgia, may be sued there by a citizen of Georgia who resides in the district. Barnes v. Western Union Tel. Co. (C. C. 1903) 120 Fed. 550.

An action by a citizen of Pennsylvania may be properly brought against a foreign corporation doing business in Pennsylvania in the federal district of plaintiff's residence. Hagstoz v. Mutual Life Ins. Co. of New York (C. C. 1910) 179 Fed. 569.

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29. Determination by court.-Under R. S. § 739, embodied herein, providing, in substance, that no civil suit shall be brought against a citizen of the United States in any other district than that of which he is an inhabitant, "or in which he is found at the time of serving the writ," it is always for the federal court to determine whether a nonresident corporation sued therein has transacted business to such an extent within the district, and has such a representative or agent therein, that jurisdiction to render a personal judgment against the corporation may be

acquired by service on that agent. St. Louis Wire-Mill Co. v. Consolidated Barb-Wire Co. (C. C. 1887) 32 Fed. 802.

30. Assignment of cause of action.See, also, notes under §§ 991 (1), 1019.

Where the assignor of a cause of action before the assignment could have prosecuted the action in a federal Circuit Court, the assignee, if the requisite diversity of citizenship exists, can prosecute the action in such court in the district of which he is a resident or in that of the defendant, and in the former case it is not required that the assignor should have also been a resident of the same district so that he might have brought suit therein. Stimson v. United Wrapping Mach. Co. (C. C. 1907) 156 Fed. 298.

31. Allegations in pleadings.-It is not necessary to aver on the record that defendant in the circuit court was an inhabitant of the district or was found therein at the time of serving the writ. Gracie v. Palmer (1823) 8 Wheat. 699, 700, 5 L. Ed. 719.

When the jurisdiction of the Circuit Court depends upon the citizenship of the parties, it is not enough that it does not appear that they are citizens of the same state, but the facts necessary to give the Circuit Courts jurisdiction must be distinctly alleged. Gates v. Osborne (1869) 9 Wall. 567, 574, 19 L. Ed. 748.

The jurisdiction of the federal courts depends on service of process or inhabitancy in the district, one of which should appear of record. Knowles v. Logansport Gaslight & Coke Co. (1873) 19 Wall. 58, 61, 22 L. Ed. 70.

Where the original bill alleged that one of the parties defendant was a corporation, and the amended bill alleged that the individual defendants were doing business under a pretended corporation of the same name, but expressly included therein the allegations of the original bill, and prayed that the parties to the original bill be made parties to the amended bill, and it appeared that the defendant corporation was incorporated in the same state as plaintiff corporation, the federal courts have no jurisdiction on ground of diverse citizenship. Empire Coal & Transp. Co. v. Empire Coal & Min. Co. (1893) 14 Sup. Ct. 66, 68, 150 U. S. 159, 37 L. Ed. 1037.

An averment of the citizenship of the defendant is indispensable. Jackson v. Twentyman (1829) 2 Pet. 136, 7 L. Ed. 374.

The jurisdiction of the court is not affected by the venue laid, or a wrong one, or by the entire omission to lay one. Cage v. Jeffries (C. C. 1839) Fed. Cas. No. 2,287.

A venue in the body of the declaration is sufficient without being stated in the margin. Dwight v. Wing (C. C. 1841) Fed. Cas. No. 4,219.

The venue, if substantially laid, is

sufficient. Gassett v. Palmer (C. C. 1842) Fed. Cas. No. 5,265.

Where the absence of a venue in one count may be supplied by necessary inference from the venue in others, the count is not bad. Noe v. Prentice (C. C. 1845) Fed. Cas. No. 10,284a.

Where a cause of action is local, a reference to the "district aforesaid," named in any preceding count, is a sufficient designation of the place. Jones v. Van Zandt (C. C. 1851) Fed. Cas. No. 7,505.

If a foreign corporation sues a citizen of one of the United States in a federal court of a district within which he is found and served with process, it does not affect the jurisdiction of the court that he is described as a citizen of the state where found, whereas he is a citizen of another state. Commercial Bank of Commerce v. Green (C. C. 1878) Fed. Cas. No. 3,059.

Where the jurisdiction of the circuit court is founded only on the fact of diverse citizenship, the complaint must show that either plaintiff or defendant resides within the district in which the action is brought. Laskey v. Newtown Min. Co. (C. C. 1892) 50 Fed. 634.

A bill was filed in the circuit court of Virginia, alleging that complainant was a corporation under the laws of New York, and that the defendant was a corporation under the laws of New Jersey, and a citizen and resident of that state, having a principal place of business at Bristol, Va., in said district. Held, that the court had not jurisdiction of the suit by reason of the diversity of citizenship of the parties, neither of them being a resident of the district, as required by this section. Central Trust Co. of New York v. Virginia, T. & C. Steel & Iron Co. (C. C. 1893) 55 Fed. 769, decree reversed Central Trust Co. v. McGeorge (1894) 14 S. Ct. 286, 151 U. S. 129, 38 L. Ed. 98.

As a bill must give jurisdiction in the district in which the suit is brought, a bill is demurrable which sets out merely that defendant is a resident of Virginia, since there are two judicial districts in Virginia. Harvey v. Richmond & M. Ry. Co. (C. C. 1894) 64 Fed. 19.

Where the only ground of jurisdiction of a federal court is the diversity of citizenship of the parties, and it is shown that the defendant is a citizen and resident of another state, it must appear from the declaration, not only that the plaintiff is a citizen of the state, but that he is a resident of the district, in which the suit is brought. Miller v. Pennsylvania R. Co. (C. C. 1899) 91 Fed. 298.

An averment that defendant is incorporated in a certain other state named is sufficient to show that it is not an inhabitant of Colorado. Weller v. Pennsylvania R. Co. (C. C. 1902) 113 Fed. 502.

An undenied allegation, in a bill for infringement against a nonresident cor

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Where in an action in a federal court, sitting in Pennsylvania, against a foreign corporation, the statement of claim filed when the summons was issued described the defendant as a railway corporation of the state of Virginia, and neither such statement, the summons, the præcipe therefor, nor the return, recited that the corporation was transacting business in Pennsylvania, a service made on the corporation's assistant secretary in Pennsylvania was insufficient to confer jurisdiction of the corporation. Earle v. Chesapeake & O. Ry. Co. (C. C. 1904) 127 Fed. 235.

A declaration in a local action in a federal district court, which does not lay a venue, or avers a wrong one, is bad on demurrer. U. S. v. Woolsey (D. C. 1845) Fed. Cas. No. 16,762.

Where, in order to give jurisdiction, it is necessary that defendant should be found within the district, a mere statement in the declaration that defendant "being in custody," etc., is insufficient. U. S. v. Woolsey (D. C. 1845) Fed. Cas. No. 16,762.

In an action against a foreign corporation, it is essential to support the jurisdiction of the court that it shall appear somewhere in the record, either in the application for the writ or accompanying its service or in the pleadings or findings of the court, that the corporation is engaged in business in the district. Dobson v. Farbenfabriken of Elberfeld Co. (D. C. 1913) 206 Fed. 125.

The right of plaintiff to sue is shown by the complaint alleging that plaintiff is a corporation organized under and pursuant to the laws of the state, and having its principal office and place of business in a certain county, which county is within the district of the federal court in which the action is brought. U. S. v. Stannard (D. C. 1913) 207 Fed. 198.

Venue is necessary to every traversable fact, and, where one is laid in the count, all matters following refer to it. Cocke v. Kendall (Super. Ct. Ark. 1834) Fed. Cas. No. 2,929b.

Venue in the margin of pleading is sufficient where none is laid in the body of the declaration. Cocke v. Kendall (Super. Ct. Ark. 1834) Fed. Cas. No. 2,929b.

(0) Venue dependent on nature of subject-matter

32. Accounting.—A partnership continues after dissolution for the purpose of liquidation and partition of its assets, and all the partners can be legally sued in the domicile of the firm for such

purposes.

Goodrich v. Hunton (C. C. 1875) Fed. Cas. No. 5,544.

33. Admiralty.-See, also, ante, § 991 (3), and notes thereunder.

A suit in rem for a marine tort may be prosecuted in any district where the offending thing is found. Commercial Transp. Co. v. Fitzhugh (1861) 1 Black, 574, 580, 17 L. Ed. 107.

Libels in rem may be prosecuted in any district of the United States where the property is found. The Slavers

(1864) 69 U. S. (2 Wall.) 383, 17 L. Ed. 911.

Causes in admiralty are not civil actions within the purview of this statute, providing that no civil suit shall be brought in any other district than that of which the defendant is an inhabitant. Atkins v. Fiber Disintegrating Co. (1873) 18 Wall. 272, 300, 21 L. Ed. 841. By the compact between New York and New Jersey of September 16, 1833 (ratified by Act June 28, 1834, 4 Stat. p. 708, c. 126), the boundary between two states from a point in the Hudson river in the forty-first degree of north latitude, to the sea, is declared to be the middle of the river, of the bay of New York, of the waters between Staten island and New Jersey, and of Raritan Bay. Held, that a vessel afloat on the New Jersey side of the Kill von Kull is within New Jersey, and subject to the jurisdiction of the United States district court for the district of New Jersey. In re Devoe Manuf'g Co. (1882) 108 U. S. 401, 2 Sup. Ct. 894, 27 L. Ed. 764.

This act does not apply to causes of admiralty and maritime jurisdiction; and a libel in admiralty, in personam, may be maintained against a corporation of another state in any district in which service may be had upon it. In re Louisville Underwriters (1889) 134 U. S. 488, 10 Sup. Ct. 587, 33 L. Ed. 991; In re St. Paul Fire & Marine Ins. Co. (1889) 134 U. S. 493, 10 Sup. Ct. 589, 33 L. Ed. 994. But see Wilson v. Pierce (D. C. 1852) Fed. Cas. No. 17,826.

The right of a claimant in a libel in rem to have the suit commenced in the division of the district in which he resides and in which the ship was seized (if any such right he have) is waived by appearing in the suit as claimant, and securing the release of the vessel by giving bond and stipulation, and procuring a transfer of the case to the division of his residence. The Willamette (1895) 70 Fed. 874, 18 C. C. A. 366.

In a suit in admiralty, where two or more defendants are citizens of different districts of the state of Louisiana, the suit may be brought in either district. Downs v. Wall (1910) 176 Fed. 657, 100 C. C. A. 209.

The rule which practically prohibits suits by attachment, by garnishment or otherwise, in the federal courts out

side of the districts of the residence of the parties, has ordinarily no application to suits in admiralty. Robins Dry Dock & Repair Co. v. Chesbrough (C. C. A. 1914) 216 Fed. 121.

Jurisdiction in rem in admiralty is exclusive in the district courts, but the suit may be instituted in the district where the res is found, irrespective of where the injury complained of occurred. Killam v. The Eri (C. C. 871) Fed. Cas. No. 7,765.

The restrictions of Judiciary Act of 1789, § 11, do not apply in admiralty, where nonresidents may be sued by original attachment, and where they may be effectively served abroad. Romaine v. Union Ins. Co. (C. C. 1886) 28 Fed. 625, 634.

Where a libel has been filed in the Southern district of New York against a vessel for damage by collision, the owner of the vessel so libeled may sue independently for his own damage in the Eastern district of New York, and is not obliged to prosecute his claim by way of cross libel in the Southern district. Brooklyn & N. Y. Ferry Co. v. The Morrisania (C. C. 1888) 35 Fed. 558.

The locus rei sitæ gives jurisdiction in suits in rem. The Ada (D. C. 1849) Fed. Cas. No. 38.

Where a libelant procured the arrest of respondent in a suit brought in a district different from that in which they both resided, upon a stale demand, of small amount, and which was already in litigation between the parties in the courts of the state in which they dwelt, it was held, that the respondent ought to be discharged from the arrest. Martin v. Walker (D. C. 1850) Fed. Cas. No. 9,170.

The court in which the offending vessel is arrested has jurisdiction of a libel for collision occurring within the territorial limits of another district. Town v. The Western Metropolis (D. C. 1865) Fed. Cas. No. 14,114.

A vessel in the basin at Jersey City moored to piles 40 feet from the dock is within the jurisdiction of the district court for the Southern district of New York. The Argo (D. C. 1874) Fed. Cas. No. 515.

A proceeding to limit the liability of a shipowner is properly brought in the district where the stranding, out of which the liability arose, occurred, where the property which such owner seeks to abandon is within such district, and no suit has been instituted in any other district. The John Bramall (D. C. 1879) Fed. Cas. No. 7,334.

Proceedings to limit the liability of shipowners may be instituted in a district where a fund or claim equitably representing the lost vessel is in litigation, though the petitioners reside in another district. In re Leonard (D. C. 1882) 14 Fed. 53.

A vessel lying at anchor and afloat between Jersey City and Manhattan Is

land, on the Hudson river, on the westerly side of the middle of said river, is within the territorial limits of the state of New Jersey, and hence within the admiralty jurisdiction of the United States district court for New Jersey. The Sarah E. Kennedy (D. C. 1885) 25 Fed. 569.

A libel having been filed for damages against a tug, in the district court for the Eastern district of New York, upon which an appeal was taken by the owners to the circuit and thence to the supreme court, other suits arising out of the same disaster having been brought against the owners in the state courts in the Southern district of New York, a petition to limit liability was filed by the owners in the district court for the Southern district during the pendercy of the appeal in the libel suit. Held, that the petition should have been filed in the district court in which the original libel was filed. In re The Luckenback (D. C. 1886) 26 Fed. 870. The limits of the jurisdiction of the federal Southern district of New York, and the district of New Jersey, over the waters of the Hudson river lying west of Manhattan island, are coincident with the boundaries of the jurisdiction of the states of New York and New Jersey over the same waters, as settled by the agreement between New York and New Jersey, entered into September 16, 1833, and approved by congress June 28, 1834. By an agreement New Jersey retained exclusive jurisdiction over the wharves on her shore and over all vessels fastened to such wharves. Held, therefore, that a vessel seized by the marshal while at a wharf in Jersey City was attached in the district of New Jersey, outside of the Southern district of New York, and a suit begun in the latter district by such attachment must fail for want of jurisdiction. The Norma (D. C. 1887) 32 Fed. 411.

Where a sheriff has attached a vessel, which is afterwards taken out of his custody and removed into another state, he can sue in admiralty to recover possession in the district court of the district into which the vessel has been removed. The Bonnie Doon (D. C. 1888) 36 Fed. 770.

Admiralty courts have a discretion as to entertaining suits between foreigners; and the transaction in question having taken place in Florida, where all the officers of defendant corporation resided, and libelant being an English corporation, no comity or reasons of justice or of superior convenience, so far as appeared, demand relief in the Southern district of New York, and service on a limited agent there will be set aside. Neptune Steam Nav. Co. v. Sullivan Timber Co. (D. C. 1888) 37 Fed. 159.

By the eleventh article of the com1 U.S.COMP.'16-72

pact of 1785 between Maryland and Virginia, it was provided that "process from the state of Virginia may be served on any part of the said [Potomac] river upon any person or property of any person not a citizen of Maryland, indebted to any citizen of Virginia, or charged with injury by him committed." Defendant was a citizen of Virginia, and the vessel seized was seized on that part of the Potomac river lying between the District of Columbia and that portion of Virginia contained within Alexandria county, which had been originally ceded by Virginia to the United States as part of the District of Columbia, and retroceded to Virginia by the United States in 1846. Held, that under the cession from Maryland to the United States of the District of Columbia and by implied cession from the District of Columbia, admiralty process from the Eastern district of Virginia might be validly and effectively served on the Potomac river, where the vessel was seized. Aitcheson v. The Endless Chain Dredge (D. C. 1889) 40 Fed. 253.

Where a libel in rem is brought in the wrong division, the objections thereto being purely formal, and it is probable that the case will be tried on issues of fact a motion by the respondent to transfer the cause to the right division should be granted. Nelson v. The Willamette (D. C. 1892) 53 Fed. 602.

The act of February 28, 1887, dividing the Western district of Missouri into four divisions and establishing district and circuit courts in each division, creates a distinct district, and distinct courts having all the essential features of a district and a district court as originally created; and such courts are limited in their jurisdiction over proceedings in rem in admiralty to cases in which the res is situated within their territorial limits. The L. B. X. (D. C. 1898) 88 Fed. 290.

A suit in admiralty in personam, may be maintained against a corporation of another state in any district in which service may be had upon it. Reilly v. Philadelphia & R. Ry. Co. (D. C. 1901) 109 Fed. 349.

Allegations that a Maine corporation, the owner of a vessel, had its principal place of business in Boston, and that the vessel was there enrolled, are not sufficient to show that Boston was the home port of the vessel. The New Brunswick (D. C. 1903) 125 Fed. 567, decree affirmed (1904) 129 Fed. 893, 64 C. C. A. 325.

Under R. S. §§ 4283-4285, post, §§ 8021-8023, apart from any rule on the subject any District Court having custody and control of a vessel or having it within its district so that custody can be acquired by its process, has jurisdiction of proceedings by the owner for limitation of liability. In re Louisville

(1137)

& Cincinnati Packet Co. (D. C. 1915) 223 Fed. 185.

34. Anti-Trust Act.-A suit by resident shippers to restrain foreign interstate carriers from putting into effect a proposed advance in freight rates which is averred to be an "arbitrary and unlawful exaction," and to be the outcome of a conspiracy and combination in restraint of interstate trade, unlawful both at common law and under the federal statutes, is one in which the jurisdiction of the federal court is not invoked solely upon the ground of diversity of citizenship, and can therefore not be brought in a federal district in which none of the defendants reside. Macon Grocery Co. v. Atlantic Coast Line R. Co. (1910) 30 Sup. Ct. 184, 215 U. S. 501, 54 L. Ed. 300, affirming decree Atlantic Coast Line R. Co. v. Macon Grocery Co. (1909) 166 Fed. 206, 92 C. C. A. 114.

A bill to restrain interstate carriers, nonresidents of the district, from putting into effect an advance of rates in interstate commerce through several states, charging that they were members of an illegal combination in restraint of trade and fostering a monopoly, etc., presented for consideration the construction of the federal interstate commerce act, so that the court's jurisdiction did not rest solely on diversity of citizenship of the parties, and the federal Circuit Court in the district of complainants' residence had no jurisdiction to compel the defendants to answer over their objection. Atlantic Coast Line R. Co. v. Macon Grocery Co. (1909) 166 Fed. 206, 92 C. C. A. 114, decree affirmed Macon Grocery Co. v. Atlantic Coast Line R. Co. (1910) 30 S. Ct. 184, 215 U. S. 501, 54 L. Ed. 300, which reversed Macon Grocery Co. v. Atlantic C. L. R. Co. (C. C. 1908) 163 Fed. 738.

For the purpose of conferring jurisdiction on a Circuit Court of a suit for damages under Sherman Anti-Trust Act, post, 8829, which authorizes a suit "in the district in which the defendant resides or is found," a foreign corporation is "found" in the state if it is doing business therein, but not otherwise. A suit for damages may be maintained in the district of plaintiff's residence, against a foreign corporation, a citizen of another state, where defendant is "found" therein. Michigan Aluminum Foundry Co. v. Aluminum Castings Co. (C. C. 1911) 190 Fed. 879. And see Southern Pac. Co. v. Arlington Heights Fruit Co. (1911) 191 Fed. 101, 111 C. C. A. 581, reversing decree Arlington Heights Fruit Co. v. Southern Pac. Co. (C. C. 1909) 175 Fed. 141.

Sherman Act July 2, 1890, § 7, post, § 8829, held not repealed by Judicial Code, § 24, par. 23, ante, § 991 (23), or sections 289, 291, 297, post, §§ 1266, 1268, 1274; and hence this section, requiring certain suits to be brought in the district of defendant's residence,

does not apply to suits for violations of the Sherman Act. Wogan Bros. v. American Sugar Refining Co. (D. C. 1914) 215 Fed. 273.

35. Attachment.-The provision that suits may be brought in the district of the residence either of plaintiff or defendant did not abrogate the settled rule that no attachment can issue out of a federal court in a case where a defendant, by reason of his nonresidence, was not and could not be personally served with process, and did not appear. Big Vein Coal Co. of West Virginia v. Read (1913) 33 Sup. Ct. 694, 229 U. S. 31, 57 L. Ed. 1053; Ex parte Des Moines & M. R. Co. (1880) 103 U. S. 794, 26 L. Ed. 461.

Under Act 1789, c. 20, § 11, incorporated into R. S. § 739, embodied herein, a foreign attachment cannot be maintained against the principal defendant unless he is an inhabitant of the district where the suit is brought, or is found within it, at the time of service of the process. Richmond v. Dreyfous (C. C. 1831) Fed. Cas. No. 11,799.

A federal court has no jurisdiction to attach property of a citizen of another state who is not found in the jurisdiction. Mauldin v. Carll (C. C. 1878) Fed. Cas. No. 9,307; Dormitzer v. Illinois & St. L. B. Co. (C. C. 1881) 6 Fed. 217.

An attachment in a United States court, in a case where no service was made on defendant, and defendant could not be found in the district, is void, under R. S. § 739, embodied herein. And a third party, claiming to own the goods attached, is entitled to set aside the attachment, the defect being jurisdictional. Noyes v. Canada (C. C. 1887) 30 Fed. 665.

Jurisdiction has been conferred as to suits against nonresidents commenced in the state courts by attachment, and removed to the federal courts. U. S. v. Ottman (C. C. 1877) Fed. Cas. No. 15,977.

Though Act March 3, 1887, authorizes an original suit brought in the circuit court, where jurisdiction is founded on the fact of diverse citizenship solely, to be brought in the district of the residence of either plaintiff or defendant, and the statutes of Connecticut permit the attachment of the property located in the state, of a nonresident defendant, without personal service on him, and, in the absence of voluntary appearance, the subjection of such property to a judgment in rem, R. S. §§ 914, 915, post, §§ 1537, 1539, authorizing the practice and modes of procedure in federal courts to be conformed to those of the respective states wherein such courts are held, and authorizing the same remedies by attachment as are provided by the laws of those states, do not give a United States circuit court sitting in Connecticut jurisdiction of proceedings in rem against the property of a nonresident defend

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