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commute the sentence of a lunatic, without her conCOMMUTATION OF PUNISHMENT FOR CRIME

sent ? We have no hesitation in answering this quesVALID WITHOUT ACCEPTANCE BY

tion in the affirmative. CONVICT.

A commutation is not a conditional pardon; nor is

it simply the substitution of one punishment for anSUPREME COURT OF OHIO, DECEMBER, 1877.*

other. In its legal acceptation, it is a change of pun

ishment from a higher to a lower degree, in the scale IN THE MATTER OF SARAH M. VICTOR.

of crimes and penalties fixed by the law, and is preA commutation, by the governor, of the punishment of a

sumed, therefore, to be beneficial to the convict. It is lunatio convict, who was sentenced to be hung, to imprisonment for life, held to be valid and to take effect an act of executive clemency, equally as a pardon, without the acceptance or assent of the convict, and it

only in a less degree. could not be defeated or in validated by the convict's rejection or refusal of it when restored to reason.

In England, the pardoning power could be exercised Commutation is not a conditional pardon, but the substitution of a lower for a higher grade of punishment, and

by Parliament; and a pardon granted by Parliament is presumed to be for the culprit's benefit.

needed not to be accepted by the culprit in order to

render it effective. In the absence of constitutional RROR to the Court of Common Pleas of Franklin

provision, it seems, therefore, to be a power belonging county. At the May term, 1868, of the Court of Common

to the legislative department. By our Constitution, Pleas of Cuyahoga county, Sarah M. Victor was con

this power is vested exclusively in the governor of the

State. Whether, under this constitutional provision, victed of murder in the first degree, and sentenced to

and in the absence of any legislation on the subject, a be executed on the 20th of August of the same year. On the 15th of July, 1868, the convict having become

pardon or commutation of punishment, by the gov. insane, the governor suspended the execution of her

ernor, would be operative without the assent or acsentence until the 20th of November, 1868, and, by his

ceptance of the convict, is a question not involved in order, she was confined in the Northern Lunatic Asy

the present case. This constitutional provision vests lum. On the 12th of November, 1868, the prisoner

the whole pardoning power in the governor, and I see still being insane, the governor commuted her punish

now no good reason why the power should not be held

to be as effective and plenary in his hands, as it would ment to imprisonment in the penitentiary in solitary

have been if left to the legislative department. But confinement for life. The governor's warrant of commutation was directed and delivered to the sheriff of

we need not, and do not, now undertake to decide

this question. Cuyahoga county. In pursuance of the command of the warrant, the prisoner was taken from the asylum

The case is amply provided for by statute. The

fifty-eighth section of the act of April 7, 1856 (S. & C. and committed to the penitentiary. She has never

850), which was in force at the date of the commutaaccepted or given her consent to the commutation. She remained in the penitentiary until the 8th day of

tion, provides: “That if any persona, after being conJanuary, 1876, when, her reason having been restored,

victed of any crime or misdemeanor, and before the she refused to assent to the commutation of her pun

execution, in whole or in part, of the sentence of the

court, becomes insane, it shall be the duty of the gorishment, and procured from the Court of Common Pleas of Franklin county a writ of habeas corpus

ernor of the State to inquire into the facts, and he

-may pardon such lunatic, or commute, or suspend, for against the warden of the penitentiary, claiming that

the time being, the execution, in such manner and for she was entitled to be set at liberty. Upon the hear

such period as he may think proper." ing of the matter, the facts above recited having been

Here is absolute power given the governor to comshown, the court held that the prisoner never having

mute the punishment of a lunatic, uucoupled with any accepted the commutation, she was retained in the

condition requiring assent. A lunatic is incapable of penitentiary without warrant of law; but that she

giving assent, and the power to pardon or commute was not entitled to be set at liberty, because she was,

his punishment is necessarily a power to do so with"in law, an escaped prisoner, after conviction." And

out the consent of the lunatic. The Legislature has thereupon, the court ordered that she be discharged from confinement in the penitentiary, and that " she

plenary power to prescribe the punishment of crimes be delivered to the sheriff of Cuyahoga county, to be

and offenses, and can exercise that power without con

sulting the offender. Where the punishmeut of a further dealt with by the Court of Common Pleas of

lunatic is commuted under this statute, the substituted that county, according to law." To reverse this judgment and order of the Court of

punishment is a punishment prescribed by law, equally

as if it had been the only punishment provided for the Common Pleas of Franklin county, and have the

offense, or the punishment inflicted by the sentence of prisoner remanded to the penitentiary, the present

the court. In substance and effect, the law declares warden of the penitentiary, who is the successor of the oflicer from whose custody she was taken, has

that any person convicted of murder in the first defiled his petition in error here.

gree, and afterward becoming a lunatic, shall be im

prisoned in the penitentiary for life, if the governor, A. H. Fritchey and Converse, Woodbury & Booth, for

by his warrant, shall substitute that punishment for Mrs. Victor.

the death penalty. As soon as the commutation is John Little, Attorney-General, for the State.

made, the new penalty becomes the one fixed by law, WELCH, C. J. The only question involved in the and the original penalty cannot be restored. The case is whether the prisoner's acceptance of the com

words “for the time being," in the section of the mutatiou is essential to its validity. Or, to state the

statute referred to, do not relate to commutations or question more generally, has the governor of Ohio, pardons, but merely tu cases where the execution is under our present Constitution and laws, power to suspended.

The judgment must be reversed, and the prisoner * To appear in 31 Ohio St. Rep.

remanded to the warden of the penitentiary.

he or

tween himself and his debtor, a holder for security of LIABILITIES OF HOLDERS OF CORPORATE

the debt, or even that he has no beneficial interest STOCK AS COLLATERAL SECURITY.

therein. This was ruled in The Neury, etc., Railway Company v. Moss & Co., 14 Beav. 64. In that case it

was said that only those persous who appear to be SUPREME COURT OF THE UNITED STATES, OCTO

shareholders on the register of the company are liable BER TERM, 1877.

to pay calls. In re Phænic Life Ins. Co., Hoare's

Case, 2 Johns. & Heming, 229, it appeared that certain PULLMAN, plaintiff in error, v. UPTON.

shares had been settled upon Hoare and others as

trustees in a marriage settlement. The trustees had An assignee of corporate stock who has caused it to be

no beneficial interest, but they were registered as transferred to himself on the books of the company and holds it as collateral security for a debt due from shareholders, with the word “trustees” added in the his assignor, is liable for unpaid balances thereon to the company or to the creditors of the company after

margin of the register, and they receipted for diviit has become bankrupt.

dends as trustees. It was held by Vice-Chancellor

Wood that they were liable as contributories to the N error to the Circuit Court of the United States

full extent, and not merely to the extent of the trust

estate. It was said "a person wbo is a shareholder is Clark W. Upton, assignee iu bankruptcy of the Great

absolutely liable, although he may be bound to apply Western Insurance Company, against Albert B. Pull

the proceeds of the shares upon a trust.” In the case man, a stockholder, to enforce payment of unpaid

of The Empire City Bank, 8 Abb. Pr. (N. Y.) 192, rebalance on stock. Pullman held the stock as collat

ported also in 18 N. Y. 200, the Court of Appeals held eral security for a debt. The facts appear in the opin

persons responsible as stockholders in respect to the ion.

stock standing in their names on the books of the Mr. Justice STRONG delivered the opinion of the

bank, though they held the stock only by way of hycourt.

pothecation as collateral security for money loaned,

and they were held liable for an amount equal to their The evidence to wbich the defendant below objected,

stock for the unsatisfied debts of the bank. In Adand to the admission of which he took exception, was

derly v. Storm et al., 6 Hill, 624, it appeared that one quite unimportant. Its object was to prove the exist

Bush, in 1837, being indebted to the defendauts, transence of the corporation and the increase of the cor

ferred to them on the books of a company certain porate stock. But the existence of the corporation

shares of stock and delivered to them the usual cerwas adinitted by the defendant's plea of non-assump

tificates. On receiving the certificates the defendants sit, and whether the corporate stock had been prop

gave Bush a receipt, stating they had received the erly increased was a question the State only could

stock, which they were to dispose of at any time for raise. It is well settled that in a suit by a corporation

$200 per share, applying the proceeds to the payment a plea of the general issue admits the competency of

of the uotes which Bushowed them, or if not sold the plaintiff to sue as such. Society for the Propaga

when the notes should be paid, to return the scrip to tion of the Gospel v. The Town of Paulet, 4 Pet. 480.

Bush or account for it. The last of the notes was The first three assignments of error may, therefore,

paid in September, 1838, and the defendants returned be dismissed without further consideration.

the scrip to Bush, giving also a power of attorney for That the fourth and fifth assignments are without the transfer of the stock. The retransfer was not merit, plainly appears in the report of Sanger v. Up

made, however, until March 2, 1840, and the defendton, 91 U. S. 56, where a similar order and notice to

ants were held liable as stockholders for a debt of the the stockholders was held, not merely sufficient, but

company contracted in January, 1840, and this, it was conclusive as to the right of the assignee to bring suit

said, would be the law though the plaintiff may not to enforce the payment of unpaid balances due for the have known at the time he trusted the company that corporate stock.

the defendants could be reached. So in Holyoke Bank The only question remaining is whether an assignee v. Burnham, 11 Cush. 183, it was decided that a transof corporate stock, who has caused it to be transferred

fer of stock on the books of the bank, intended to himself on the books of the compauy, and holds it merely to be held as collateral security, makes the as collateral security for a debt due from his assignor, holder liable for the bank debts. It was said the credis liable for unpaid balances thereon to the company, itor is to be considered the absolute owner, and that or to the creditors of the company, after it has be

his arrangement with his debtor cannot change the come bankrupt.

character of the ownership. And in Wheelock v. Kort That the original holders and the transferees of the et al., 77 Ill. 296, the doctrine was asserted that when stock are thus liable we held in Upton v. Tribilcock, Saw

shares of stock in a banking corporation have been yer v. Upton, and Master v. Upton, 91 U. S. 45, 56, and 65,

hypothecated and placed in the hands of the transand the reasons that controlled our judgment in those

feree, he will be subjected to all the liabilities of orcases are of equal force in the present. The creditors dinary owners, for the reason that the property is of the bankrupt company are entitled to the whole

in his name, and the legal ownership appears to be in capital of the bankrupt, as a fund for the payment of

him. the debts due them. This they cannot have if the

These decisions are sufficient to vindicate the judgtransferee of the shares is not responsible for what

ment of the court below. The case of the plaintiff ever remains unpaid upon his shares, for by the trans

in error is a hard one, but he cannot be relieved fer on the books of the corporation the former owner is discharged. It makes no difference that the legal

consistently with due observance of well-established

law. owner, that is, the one in whose name the stock stands on the books of the corporation, is in fact only, as be- The judgment of the Circuit Court is affirmed.


hite continued to collect these premiums and receive LOANS MADE BY CORPORATION IN VIOLA

them; did not remit to the company, but retained in TION OF CHARTER.

his own hands all the premiums to which he was en

titled as the agent of the company, from that time on UNITED STATES CIRCUIT COURT, NORTHERN DIS

until January, when his defalcation was discovered. TRICT OF ILLINOIS, APRIL 27, 1878.

It is claimed first, that this note is ultra vires; that this company had no right to loan this money to Cronk

hite on the security of this note; and MUTUAL LIFE INSURANCE COMPANY V. Wilcox.

Secondly, That the company has been reimbursed A New York life insurance company was required by its

by the collection of the premiums upon policies which charter to invest its capital and income in mortgages Cronkhite had placed, and upon which he was ention real estate in New York State, or in United States

tled to commissions. or New York State stocks. It loaned money on an individual note. Held, that the maker of the note could With reference to the first question — that of the not set up that the note was invalid, by reason of the company having no authority under its charter to make

power of the company – there is a class of old cases the loan.

in the State of New York, which, perhaps, go to the

extreme extent of holding that this company, being CTION on promissory note. The facts appear in by its charter directed to invest its funds in a certain the opinion.

manner, all other methods of investing its funds are BLODGETT, J. This is a suit upon a promissory excluded; and even securities given for such investnote executed by Mr. Cronkhite, payable to Merrill and ments are void. But there is no case that is just Ferguson, and guaranteed by Wilcox. The note bears parallel with this that is cited by counsel, and none date June 29, 1875, for the sum of $10,000. The facts which I have found. The later New York cases, and surrounding the transaction are these: The Mutual the later cases all through the United States, do not Life Insurance Company is a corporation created in go to the extent of the New York cases, which were the State of New York, and deriving its powers from cited by the defendant, and I think the settled rule the charter granted by the State of New York, and now is, that the question of how this company shall certain of the general laws of that State.

invest its funds is a question between itself and the The provisions of its charter applicable to this case sovereignty that created it, and not a question beare sections 9, 10 and 11.

tween the borrowers and the company. That it does $ 9. It shall be lawful for the said corporation to in- not lie - in other words - in the mouth of this devest the said premiums in the securities desiguated in fendant, to charge that this security is void. the two following sections *

The money was advanced upon the faith of this se$ 10. The whole of the premiums received for insur- curity. But whether the company had the power to ance by said corporation, * * shall be invested take this security or not, is a question the defendant in bonds and mortgages on unincumbered real estate

has no right to raise. within the State of New York; the real property to There is a large number of cases that have arisen secure such investment of capital sball, in every case, lately, under the United States National Bank Act, be worth twice the amount loaned thereon.

that are very analogous to this; where the bank is $ 11. The trustees shall have power to invest a cer- positively prohibited by the act from loaning more tain portion of the premiums received, not to exceed than ten per cent of its capital to any one person, and one-half thereof, in public stocks of the United yet the courts have held that securities given on such States, or of this State, or of any incorporated city

loans, in excess of ten per cent, were valid, and that in this State.

it does not lie in the mouth of the party who borMr. Cronkhite was the agent of the plaintiff in this

rowed the money of the company to object to a violacity. In the month of June, 1875, he applied to the tion of this rule. Any other rule than this would plaintiff for a loan of money, stating to them that his

make the policy-holders and parties interested in the interests required that he should raise the sum of funds of this company entirely remediless. Suppose $10,000; that it was very difficult for him to attend to

that the directors of this corporation, induced by the other business here, as their agent, and at the same larger rate of interest which is usually proffered in the time make necessary changes in his own affairs. Con

western States, or outside of New York, had, instead siderable discussion and correspondence took place of loaning their money upon New York State security, between the parties in regard to this matter; and fi

seen fit to invest largely in securities in the State of nally the company concluded to let him have the Illinois, would the stockholders have to lose it all simmoney. But they directed Merrill and Ferguson, who ply because their directors had violated the charter? were the general agents in the north-west, of the plain- It would seem to me a very barsh rule to say that tiff, to advance the money, and the note was taken by the parties interested in this fund should be the losers Merrill and Ferguson, and assigned by them to the simply from this violation of the company's charter; company. This note was guaranteed by Mr. Wilcox, a question simply between the sovereignty and the in due form; and at the same time, and simultane- corporation itself. ously with giving the notes, Cronkhite gave to the com- Some force may also be given to the suggestion that pany an assignment of all his interests in the renewals, this was an isolated transaction made between the as they are called. It was claimed on the part of the

company and its agent, and not a general change in defendant, that Cronkhite, as the agent of the com- the policy or business of the company. pany, had a vested right in the commissions upon the But the same section which I have just read, for inpremiums, which should be paid upon certain policies stance, requires that the funds of the company shall which he had placed as the agent of the company. be invested on unincumbered real estate. Suppose

Shortly after this note was given, or perhaps simul- that the directors had made loans to a man in the taneously with giving it, the money was remitted to State of New York, upon incumbered real estate, Mr. Cronkhite by Merrill and Ferguson; but Cronk- would it lie in his mouth to say that that loan was void because there was a mortgage on the property of the relators against a number of insurance compa prior to the mortgage of the company for the debt ? nies incorporated by the laws of other States, but do

The same section also provides that the real estate ing business in that State under a license granted purshall be at least double the value of the amount suant to a statute regulating that subject. The Circuit loaned.

Court declines to entertain jurisdiction of the causes Now, the same rule that is invoked here on the part for the reason, as is alleged, that the defendant comof the defense would entitle a man in the State of panies were not, “at the commencement of the reNew York, who has borrowed this fund, to say that spective suits, or at any time, inhabitants of or found the security for the loan was void because the property in the said district.” This presents the only question was not of double the value; that the directors had in the case, as it is conceded that the citizenship of the exceeded their power, and the note or obligation was parties is such as to give the court jurisdiction if the ultra vires. I, therefore, conclude that the defense of

several defendants can be sued in the district without want of power to make this loan here, and consequent their consent. invalidity of the note, is not well taken.

A statute of Pennsylvania provides that “no insurThe next objection is, that the company has been ance company not of this State, nor its agents, shall paid by the collections of commissions which ought to do business in this State until he has filed with the inhave gone to Cronkhite, and which should be applied surance commissioner of this State a written stipulain liquidation of this note.

tion, duly authenticated by the company, agreeing As I have already said in stating the facts, Cronk- tbat any legal process affecting the company served on hite, during the time he remained the company's agent,

the insurance commissioner, or the party designated after the giving of this note, retained all the commis- by him, or the agent specified by said company to resions in his hands, and the company received no com- ceive service of process for the said company, shall missions from him while he remained the company's have the same effect as if served personally on the comagent. It may be a very important question whether pany within this State, and if such company should Mr. Cronkhite is entitled to draw any commissions cease to maintain such agent in this State so desigafter his agency ceased.

nated, such process may thereafter be served on the Ou general principles I would be inclined to hold insurance commissioner; but so long as any liability that the insurance company would certainly have of the stipulating company to any resident of this made a very improvident and unbusiness-like contract State continues, such stipulation cannot be revoked or to agree to pay an agent commissions on collections modified, except that a new one may be substituted, after he had ceased to be worthy of their confidence so as to require or dispense with the service at the of. as an agent to make collections.

fice of said company within this State, and that such But whether that is so or not, I am satisfied that this service of process according to this stipulation shall be defense, if available at all, can only be made in a court sufficient personal service on the company. The term of equity where an account can be stated, and it can process’includes any writ of summons, subpæna, or be ascertained how much this company has collected order whereby any action, suit, or proceedings shall be that ought to be applied upon this claim.

commenced, or which shall be issued in or upon any I do not intend to co nwit myself by saying that the action, suit, or proceedings brought in any court of defense could be made applicable even in equity; this Commonwealth having jurisdiction of the subjectbut, if at all availab's it must be maintained in matter."—(Laws of Penn., 1873, p. 27, $ 13.) equity.

The return to the rule to show cause admits that all I shall, therefore, find the issues in this case for the the defendant companies were doing business in the plaintiff, and assess the damages at the amount of the State under this statute, and that their designated note.

agents were duly served with process in each of the

suits. For the purposes of this hearing the fact of due JURISDICTION OF UNITED STATES CIRCUIT service upon the agents must be considered as estabCOURTS.

lished. If in reality it is not so, the court below will UNITED STATES SUPREME COURT, OCTOBER TERM,

not be precluded by any thing in this proceeding from 1878.

inquiring into the truth and acting upon the facts as

they are found to exist. EX PARTE SCHOLLENBERGER.

The act of 1875, determining the jurisdiction of the

Circuit Courts (18 Stat. 470), and which in this particA statute of Pennsylvania requires every insurance company from without the State, as a condition for doing

ular is substantially a re-enactment of the act of 1789 business therein, to stipulate that any legal process af- (1 Stat. 79, § 11), provides that “no civil suit shall fecting it may be served on a designated agent within the State or on the insurance commissioner, and that

be brought before either of said courts against any such service shall have the same effect as if served per- person by any original process or proceeding in any sonally within the State Held, that original process from the United States Circuit Court served in Pennsyl

other district than that whereof he is an inhabitant, vania upon the designated agent of a non-resident insur

or in which he shall be found at the time of serving ance company, giving the stipulation mentioned, would give jurisdiction to the court under the act of 1875 (18 such process or commencing such proceedings, exStat. 470), the company being “found" within the dis

cept," etc. trict.

It is unnecessary to inquire whether these several ETITION for a writ of mandamus. The facts ap- companies were inhabitants of the district. The repear in the opinion.

quirements of the law, for all the purposes of this Mr. Chief Justice WAITE delivered the opinion of case, are satisfied if they were found there at the time the court.

of the commencement of the suits, and that question This is a petition for a writ of mandamus, requiring we think was settled in R. R. v. Harrix, 12 Wall. 81. the judges of the Circuit Court of the United States In that case it appears that when the suit was comfor the Eastern District of Pennsylvania to hear and menced the statutes defining the jurisdiction of the determine certain suits brought in that court in favor courts of the District of Columbia provided that “


110 a case.

action or suit shall be brought * * by any original Circuit Court may not be technically a court of the process against any person who shall not be an inhab- Commonwealth, it is a court within it, and that, as we itant of or found within the district at the time of think, is all the Legislature intended to provide for. serving the writ.”—(2 Stat. 106, § 6.) Afterward, in States cannot by their legislation confer jurisdiction 1867, the law was changed in respect to foreign corpo- upon the courts of the United States, neither can conrations doing business in the district, and service al- sent of parties give jurisdiction, when the facts do lowed upon the agent (14 Stat. 404, § 11), but when not; but both State legislation and consent of parties the suit was begun and the process served the old law may bring about a state of facts which will authorize was in force. The Baltimore and Ohio Railroad Com- the courts of the United States to take cognizance of pany, a Maryland corporation, was authorized by Con.

Ex parte McNeil, 13 Wall. 243. Thus, if the gress to construct and extend its railroad into the Dis- parties to a suit, both plaintiff and defendant, are in trict of Columbia. Harris having been injured while fact citizens of the same State, an agreement upon the traveling as a passenger upon the railroad outside of the record that they are citizens of different States will district, sued the company in the Supreme Court of not give jurisdiction. But if the two agree that one the district, and caused the writ to be served upon the shall move into and become a citizen of another State, president of the company within the district. The in order that jurisdiction may be given, and he actucoinpany objected to the jurisdiction of the court, and ally does so in good faith, the court cannot refuse to insisted that it was neither an inhabitant of nor found entertain the suit. So, as in this case, if the Legislawithin the district. In ruling upon this objection we ture of a State requires a foreign corporation to conheld that although the company was a foreign corpora

sent to be “found” within its territory for the purtion, it was suable in the district, because it had in pose of the service of process in a suit, as a condition effect consented to be sued there in consideration of to doing business in the State, and the corporation its being permitted by Congress to exercise therein its does so consent, the fact that it is found gives the corporate powers and privileges. The language of jurisdiction, notwithstanding the finding was prothe court, speaking through Mr. Justice Swayne, is : cured by consent. The essential fact is the finding “ It (a corporation) cannot migrate, but may exercise beyond which the court will not ordinarily look. its authority in a foreign territory upon such condi- A corporation cannot change its residence or its tions as may be prescribed by the law of the place. citizenship. It can have its legal home only at the One of these conditions may be that it shall consent place where it is located by or under the authority of to be sued there. If it do business there it will be pre- its charter, but it may by its agents transact business sumed to have assented, and will be bound accord anywhere, unless prohibited by its charter or excluded ingly." Then, after an examination of the statute by local laws. Under such circumstances it seems granting the right to extend the road, it was said (p. clear that it may, for the purpose of seouring business, 84): “We entertain no doubt that it made the com- consent to be “found " away from home for the purpany liable to suit where this suit was brought in all poses of suit as to matters growing out of its transacrespects as if it had been an independent corporation tions. The act of Congress prescribing the place where of the same locality." This language was cited with a person may be sued is not one affecting the general approbation and adopted as a correct exposition of the jurisdiction of the courts. It is rather in the nalaw by Mr. Justice Field, speaking for the court, in ture of a personal exemption in favor of a defendR. R. v. Whitton, 13 Wall. 285.

ant, and it is one which he may waive. If the citizens Applying these principles to the present case there ship of the parties sufficient, a defendant may cannot be any doubt, as it seems to us, of the juris- consent to be sued anywhere he pleases, and cerdiction of the Circuit Court over these defendant tainly jurisdiction will not be ousted because he has companies. They have in express terms, in consider- consented. Here the defendant companies have proation of a grant of the privilege of doing business vided that they can be found in a district other than within the State, agreed that they may be sued there, that in which they reside, if a particular mode of prothat is to say, that they may be found there for the ceeding is adopted, and they have been so found. In purposes of the service of process issued “ by any court our opinion, therefore, the Circuit Court has jurisdicof the Commonwealth having jurisdiction of the sub- tion of the causes, and should proceed to hear and deject-matter." This was a condition imposed by the cide them. State upon the privilege granted, and it was not un- We are aware that the practice in the Circuit Courts reasonable. La Fayette Ins. Co. v. French, 18 How. generally has been to decline jurisdiction in this class 407. It was insisted in argument that the statute con- of suits. Upon an examination of the reported cases fines the right of suit to the courts of the State, but in which this question has been decided, we find that we cannot so construe it. There is nothing to mani- in almost every instance the ruling was made upon fest such an intention, and as the object of the Legisla- the authority of the late Mr. Justice Nelson, in Day ture evidently was to relieve the citizens of Pennsyl- v. Rubber Co., 1 Blatchf. 628, and Pomeroy v. R. R. vania from the necessity of going outside of the State Co., 4 id. 120. These cases were decided by that to seek judicial redress upon their contracts made learned justice, the one in 1850, and the other in 1857, with foreign insurance companies, it is but reasonable long before our decision in R. R. v. Harris, supra, to suppose that they were entirely at liberty to select which was not until 1870, and are, as we think, in conthe court in the State having jurisdiction of the sub- flict with the rule we there established. It may also ject-matter, which, in their judgment, was the most be remarked that Mr. Justice Nelson, as a member of convenient or desirable. As the company, if sued in this court, concurred in that decision, a State court, could remove the cause to the Circuit Judge Woods, of the fifth circuit, has already deCourt, and thus compel a citizen of the State to sub- cided in favor of the jurisdiction (Knott v. Ins, Co., 2 mit to that jurisdiction, we see no reason why the Woods, 479), and Judge Dillon, of the eighth circuit, citizen may not, if he desires it, bring the company declined to take it only because he felt himself foreinto the same jurisdiction at the outset. While the closed by the rulings of other judges, and especially

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