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ant's road at the time the accident occurred. This assignment was not well taken. It was held by the court in the cases of Gulf, C. & S. F. R. Co. v. Wheat, and of Central & M. R. Co. v. Morris, 28 Am. & Eng. R. R. Cas. 50 (decided at the last Galveston term), that, without authority conferred by statute, one railroad company could not lease its road to another so as to absolve itself from its obligations to the public. Where one such company, without such authority, surrenders the control of its line to another, it becomes liable for the torts of the company operating it which are committed upon its line.

The case of the Missouri Pac. R. Co. v. Watts, 63 Tex. 549, cited by council for appellant, is not in conflict with this opinion. That action was brought both against the Missouri Pacific R. Co. and the International & Great Northern R. Co., and the court then say: "It is alleged and shown that, at the time of the injury, the appellee was the servant of the Missouri, Kansas & Texas R. Co. That company had previously leased the road and property of the International & Great Northern R. Co., and was in charge of and operating the same at the time of the injury. The leasing of a railroad, under due authority of law, affects a transfer of rights and liabilities in its management, so that the corporation owning the railroad is discharged from liabilities for the lessee's torts.' Pierce R. R. 283, and note 6. In accordance with that doctrine, the International and Great Northern R. Co. would not be liable to the appellant for the damages arising from the injury."

6

The proposition that the owner is absolved from liability when the lease is duly authorized by, law is not to be disputed; but that, without a statute conferring that power, a railroad company cannot lawfully lease and transfer the control of its road, is settled by the cases we have previously cited. We have been referred to no general law of our legislature authorizing such lease. If any private act existed, defendant should have pleaded it, so as to show that the lease was lawfully made. This not having been done, we conclude that the leases were not warranted by law, and hence that the court did not err in sustaining the exceptions to so much of the answer.as set up that the defendant's railroad was being operated by the Missouri Pacific R. Co. at the time of the injury.

The sixth assignment of error is that "the court erred, in the sixth paragraph of its charge to the jury, in stating the Assessment of rule for assessing the damages differently from the damages. claim made in the petition. The items as stated in the charge, do not correspond with the items as stated

in the petition, as they should do." This assignment is not well taken. The elements of damages which the jury were instructed by the court to take into consideration are substantially the same as those alleged in the petition.

The other assignments which allege error in the action of the court, in giving and refusing instructions, are of such a nature that they cannot be considered in the other assignabsence of a statement of facts. Without know- ments. ing what evidence was adduced upon the trial, we cannot say that there was error in either of the particulars complained of in these assignments. The other assignments call in question the sufficiency of the evidence to sustain the verdict, and, without a statement of facts, cannot be considered.

fy statement

In a written argument, filed since the statement of facts was stricken from the record, we are asked to reverse the judgment; because, as is claimed, the judge who tried the cause below failed to make out and certify a statement of facts within the time required by the Failure of statute. The trial was had in December, and the Judge to certicourt did not adjourn until the ninth day of March. of facts. On the morning of that day counsel of plaintiff and defendant each presented the judge with a statement of facts, stating that they could not agree. Ten days were allowed for preparing and filing the statement, but this was not done until the fifth day of April, when he certified a statement, and directed the clerk to file it as of the ninth of March, and at the same time made a certificate to the foregoing facts, as well as to the further fact that he had prepared the statement as soon as his "other engagements would admit." Appellant treated the paper so prepared and filed, as a statement of facts, and brought it up in the record. The action of the court was neither excepted to, or assigned as error, and is nowhere complained of except in the written agreement. It is obvious we cannot revise it. If error at all, it is not of that fundamental character which it is our duty to consider without an assignment specifically pointing it out. It is to be remarked, however, that the court continued in session for more than two months after the case was tried, but more than one month after the motion for a new trial was overruled. The statement prepared by counsel, not having been presented to the judge until the last day of the term, it may be doubted whether appellant could have complained, if the judge had at that time refused either to make out and certify a statement, or allow additional time for that purpose. We find no error in the judgment, and it is affirmed.

No Power to Lease Road Unless by Statutory Authority.-See note, 32 Am. & Eng. R. R. Cas. 410.

MAXWELL

ข.

ATCHISON, TOPEKA, AND SANTA FÉ R. Co.

(U. S. Circuit Court, Eastern District Michigan, March 19, 1888.)

Passenger--Expulsion from Train-Jurisdiction of Action.-A cause of action arising from the wrongful expulsion of a passenger from a train, arises, not where the contract of carriage is made, but at the place where the passenger is wrongfully expelled.

Writ-Service-Foreign Corporation-Agent.-Service of process, in an action against a foreign railroad corporation, cannot be made upon an agent whose authority is limited to soliciting business, although such agent may have been employed by the defendant for the purpose of compromising the suit.

Personal Injuries Federal Courts Jurisdiction.-Under the act of congress of 1875, which makes it the duty of a federal court to dismiss any action when it appears to its satisfaction that the suit does not really and substantially involve a dispute properly within its jurisdiction, the circuit court will not entertain an action of tort for the recovery of damages for personal injuries, when it is obvious upon the pleadings that the amount of the recovery would be less than $2000.

THIS was an action of trespass upon the case to recover damages for the alleged expulsion of the plaintiff from one of defendant's passenger cars within the State of Kansas. Plaintiff, who is a resident and citizen of this county, brought from. the Wabash Company in Detroit, a ticket for Denver, Colo., and return. This ticket was composed of several coupons, one of which entitled him to be transported over the railroad of the defendant in the State of Kansas. The expulsion took place on his return from Denver. Defendant pleaded to the jurisdiction of the court: First-That defendant is a corporation organized under the laws of Kansas, and has no agent in this State upon whom process could be lawfully served; that George E. Gillman, upon whom such process was served, has desk room, for which this defendant pays, in a coal office in this city, and has merely authority to solicit persons intending to travel in Kansas to patronize the defendant road; that he has no authority to sell tickets, and is not clothed with any agency whatever from this defendant, except as such solicitor. Second-That the ejection of the plaintiff charged in the declaration took place in the State of Kansas; that Gillman did not solicit the plaintiff to travel upon the defendant road, and

neither the purchase of the ticket nor the cause of action grew out of the agency of said Gillman as passenger agent. To this plea plaintiff replied: First, that Gillman was an agent of the defendant within this State, and was represented by the defendant upon one of its printed folders as a "passenger agent," and that the defendant recognized Gillman as such agent by authorizing him to compromise this suit against it for a specified sum; and, second, that the cause of action did accrue to the plaintiff within the State of Michigan, because the contract was made with the defendant's agent by the purchase of a ticket in Detroit to Denver and return, and was a continuing contract upon which a transitory action arises. Defendant demurred to this replication, and plaintiff joined in the demurrer.

Sylvester Larned and D. A. Straker for plaintiff.
Alfred Russell for defendant.

sented.

Service of process-Cause of

BROWN, J.-Two questions are presented by the pleadings in this case: First, whether Gillman was such a representative or agent of the defendant company that such company can be said to be "found within this dis- Questions pretrict, within the meaning of the act of Congress; second, whether this court has jurisdiction of an action for a trespass committed upon the plaintiff in another State. The defendant is a corporation organized under the laws of Kansås, and its several lines of railway run westward from the Missouri river. It was represented in Detroit by Gillman, who is described upon its folders as a "passenger agent." His business is to solicit passengers for the defendant, but he has no authority to sell tickets. He also seems to have been employed by the defendant to effect a settlement of plaintiff's claim, and, in pursuance of his instructions, made an offer of compromise. It does not appear to me that the law of this State Kansas. with respect to suits against foreign corporations (How. St. § 8145) cuts any figure in the case, since it provides for service of process upon the agent of a foreign corporation only where the cause of action arises within this State. I am clearly of the opinion that the cause of action arises, not where the contract is made, but where it is broken; and that, as the expulsion of the plaintiff took place in the State of Kansas, the cause of action must be deemed to have arisen there. But, in addition to that, the statute provides that service may be made upon any officer or agent of the corporation; and the question, Who shall be deemed an "agent" within the meaning of the statute? is left an open one, to be determined irrespective of the statute.

action arose in

Agent upon

may be served -Foreign corporation.

The general rule appears now to be well settled, that a foreign corporation may be sued within any jurisdiction wherein it carries on an important part of its business. Where, under the laws of the State, it is required whom process as a condition of doing business within the State that it shall appoint an officer or agent upon whom process may be served, such corporation is always treated as "found" with the State within the meaning of the judiciary act; and suits in the federal courts may be instituted by service upon him. Ex parte Schollenberger, 96 U. S. 369; Brownell v. Railroad Co., 3 Fed. Rep. 761; Runkle v. Insurance Co., 2 Fed. Rep. 9; Knott v. Insurance Co., 2 Woods, 479; Fonda v. Assurance Co., 6 Cent. Law J. 305. On the other hand, when an officer of a foreign corporation is temporarily visiting or travelling within the State, it is equally well settled that service of process against the corporation cannot be made upon him if the corporation is not actually doing business within the State. St. Clair v. Cox, 106 U. S. 350; Newell v. Railway Co., 19 Mich. 336. What is the character or amount of business which the corporation must do to subject its agent to the service of process within the foreign State, is left in some doubt by the authorities. If it have an office for the general transaction of its business,—the sale of its goods if it be a manufacturing corporation, or the making of contracts and the receipt of freight and passengers for transportation if it be a railroad, -it would appear to be sufficient. Hayden v. Mills, 1 Fed. Rep. 93; Railroad Co. v. Harris, 12 Wall. 65, Railroad Co. v. Cram, 102 Ill. 249; Libbey v. Hodgdon, 9 N. H. 394. So it was held that the circuit court of Illinois had jurisdiction of an action against a beef-canning corporation organized under the laws of Missouri, which owned a slaughter-house and stock-yard within the State of Illinois, where beef to be canned was slaughtered and dressed for and in the name of the company. Packing Co. v. Hunter, 7 Rep. 455. So in Williams v. Transportation Co., 14 O. G. 523, it was held that the station agent of a foreign transportation company was a representative upon whom process might be served, though he had nothing to do with the construction or operation of the cars, nor with the running of the same; his duty being merely to keep the books of the company, to collect the amount due for freights received and shipped, and to make returns of the same to the office of the company at Philadelphia. In that case the State law provided that actions might be brought against foreign corporations by service of process upon any officer, director, agent, clerk, or engineer. The same principle has been applied to foreign insurance companies having

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