residence, may voluntarily come into this State, and their capacity to do so for the purpose of contracting debts, acquiring property, suing and being sued, has been almost universally recognized. 20 N. Y., 215, supra.

The case of Olcott v. R. R. Co., 20 N. Y., 210, for another reason does not control this case, as before stated.

It involves the idea of a new departure, from the rule of law as settled thirty years ago in Faulkner v. Delaware & R. C. Co., 1 Den., 441. Such oscillations in a state tribunal are not ap proved or followed in the Federal Courts, more especially when they make a sacrifice of truth, justice and law.

Mr. D. Rumsey, for defendant in error: The plaintiff in error was a Corporation organized under the laws of the State of Pennsylvania, foreign to the State of New York. This action having been commenced in the State of New York, for a cause of action (the use of a railroad located in that State) which originated there, the Statute of Limitations of New York was not a defense against any part of the de. mand of the plaintiff in error. The United States has never enacted any general Statute of Limitations.

The Statute of Limitations of New York is six years for actions on contracts. Code, sec. 100.

The phraseology of this section of the Statute would seem necessarily to imply that it referred only to persons having the capacity to go out of, and return into, the State of New York. The court must presume that the Legislature, in adopting it, was familiar with the law as to the existence of corporations and their attributes. That a corporation has its existence from, and can have its domicil only within the legal jurisdiction of its origin, and is in its nature incapable of migration from or to such place, or any other place, has long been too well settled to be disputed.

Bank of Augusta v. Earle, 13 Pet., 588; Ohio & Miss. R. R. Co. v. Wheeler, 1 Black, 286 (66 U.S., XVII., 130); Merrick v. Van Santvoord,34 N. Y., 208; Stevens v. Phoenix Ins. Co., 41 N. Y., 149.

Such being the status of a foreign corporation, it follows that it was a legal impossibility for the plaintiff in error to depart from the State of Pennsylvania, nor could it come into, exist in or depart from the State of New York. It must, from its very organization, remain continuously out of the State of New York.

of the Tioga Company. He ran the railroad, not the Railroad Corporation.

It is not pretended the Tioga Company had appointed any agent in the State of New York, under the Statute of that State passed in 1855, upon whom process could have been served in pursuance of the provisions of that statute.

The courts have uniformly applied to the Statutes of Limitations a liberal construction, and more especially have so applied it to the saving clause in question.

Olcott v. Tioga R. R. Co., 20 N. Y., 223 and cases there cited; Bulger v. Roche, 28 Mass., 39; Dwight v. Clark, 7 Mass., 515.

This precise question, that the Statute of Limitations of New York is not a defense in favor of a corporation foreign to that State, has been settled by the court of last resort in that State, the Court of Appeals.

Olcott v. Tioga R. R. Co., 20 N. Y., 210. And this case has been within a few months solemnly affirmed in the same court.

Rathbun v. Northern Central R. R. Co., 50 N. Y., 656.

The Statute of Limitations under which these cases were decided, is identical with the one of which plaintiff in error seeks to avail itself.

2 N. Y. Stat. at L., 307, secs. 90, 309; Code of N. Y.. secs. 90, 100.

The effort of counsel for plaintiff in error to distinguish between that case and this, is entirely fallacious, for

1. The plaintiff in error was the defendant there.

2. That action was commenced in 1856, and the evidence in this case shows that from 1852 the plaintiff in error had an office, a superintendent and property in this State.

3. It is, as before stated, idle to suppose that the positive provisions are to be rendered inef fectual by the plaintiff in error having property in New York, when it cannot go there itself.

The same point has also been fully discussed and decided by the circuit court on the demurrer in this very action.

Blossburg, etc., R. R. Co. v. Tioga R. R. Co., 5 Blatchf., 387.

Such being the construction put upon its Statute of Limitations by the court of last resort in the State of New York, the Federal Courts are required to adopt such construction. Such is the fair meaning of the Judiciary Act of the United States.

Hulbert v. Hope Mut. Ins. Co., 4 How. Pr., 275; Brewster v. Michigan Cent, R. R. Co., 5 How. Pr., 183: Bank Commerce v. Rutland & Wash. R. R. Co., 10 How. Pr., 1.

But the Tioga Company did not have in New York a president, treasurer or secretary, so that a service could be made on one of them, as mentioned in section 134 of the New York Code. Shattuck, the witness, was neither of these officers; he was Superintendent of the Tioga R. R. He was not even the managing agent

And the only instance to be found where this court has departed from this rule, was in a case where the decisions of the state court, on the questions involved, had been so vacillating as to induce this court to say that following it would be to sacrifice truth, reason and justice.

Gelpcke v. Dubuque, 1 Wall., 175 (68 U. S., XVII., 520).

2. The Statutes of Limitation of the several States are purely local laws; none are more so. The courts of the several States treating such statutes as affecting only the remedy, have paid

In 1848, the Code of New York authorized the commencement of a suit by the delivery of a copy of the summons to the defendant, and, if the suit was against a corporation, to the president or other head of the corporation, secretary, cashier or managing agent thereof.

In 1851 this section was amended by adding thereto the words "but such service can be made, in respect to a foreign corporation, only when it has property within this State or the cause of action arose therein."

In 1859 this subdivision was further amend ed by adding, at the end, the words "or, where such service shall be made within the State, personally upon the president, treasurer or secretary thereof."

It would appear from this analysis that the Legislature intended to authorize the commencement of a suit against a corporation by the delivery of a summons to its president or other officer, without regard to the facts: 1, whether it was a domestic or a foreign corporation; or, 2, whether it had property within the State; or, 3, whether the cause of action arose within the State; or, 4, whether such service was made within this State or without the State. It amended the proceeding, first, by limiting this mode of commencing a suit against a foreign corporation to a case where it had property within this State or where the cause of action arose therein; and, second, by requiring such service to be made within this State.

In commenting upon these provisions, the counsel for the plaintiff in error says: "It is then apparent that ever since 1848, it has been in the power of any creditor of the Tioga Company to sue it in the courts of New York, and recover a judgment against it as effectual and conclusive as any that could be obtained against any citizen or domestic corporation, for it has had, during all that time, property within the State and officers upon whom process could have been personally served; and in this case, the cause of action, if any, arose within the State of New York."

In Hulburt v. Ins. Co.,4 How. Pr.,274; Brewster v. Mich. Cent. R. R. Co., 5 How. Pr., 183; Bank v. Rutland R. R. Co., 10 How. Pr., 1, it is held that a judgment obtained in a suit commenced by the service of a summons upon an officer of a foreign corporation while in this State is not a personal judgment, that it can only be en-forced against property in this State.

In Rathbun v. R. R. Co. [supra], in delivering the unanimous opinion of the court, Folger, J., after citing the statutes upon the subject and discussing the decisions of the State heretofore made, bases the decision that the statute did not limit the action against the defendant in that suit upon the principal that the judgment to be obtained by service upon the officer of a foreign corporation would not be a full and perfect judgment prevalent against it in a State other than New York. The case as reported in the series does not contain the opinion, but a copy certified by the reporter has been handed us, and it is full and explicit upon the point now suggested.

The cases establish, that a corporation has its existence and domicil only within the jurisdiction of its origin, and that in its nature it is incapable of migration to another jurisdiction.

In The Bk. v. Earle, 13 Pet., 521, it was said: "The artificial person or legal entity known to the common law as a corporation, can have no legal existence out of the bounds of the sovereignty by which it is created, that it exists only in contemplation of law and by force of law, and where that law ceases to operate the corporation can have no existence. It must dwell in the place of its creation.”

The same doctrine was reiterated and the above language quoted with approbation by Ch. J. Taney, in R. R. Co. v. Wheeler, 1 Black, 295 [66 U. S., XVII., 133].

reconsidered.

It is also established in the courts of New York (Merrick v. Van Santwoord, 34 N. Y. 208) that a foreign corporation is a citizen of the State from which it obtains its charter, and that it is incapable of immigration. See, also, Stevens v. Ins. Co., 41 N. Y., 149, to the same purport.

We do not say that a corporation cannot run its cars in a State other than that where it is incorporated and where it is domiciled, nor that it cannot by its lawful agents make contracts and do other business in such State. We assume that it can. In doing these things it does not lose its residence in the former State nor become a resident of the latter. It still resides in the State where it is incorporated and does not depart therefrom.

We assume, also, that a foreign corporation may appoint an attorney to appear for it when sued in a foreign State, and that a judgment obtained against it, upon such appearance, would be perfect and complete. We are not aware that this proposition has ever been doubted. McGoon v. Scales, 9 Wall., 31, 32 [76 U. S., XIX., 548]: Chaffee v. Hayward, 20 How., 208 [61 U. S., XV., 804].

By section 100 of the New York Code, already quoted in full, the Statute of Limitations does not apply to the case of a person who shall be "out of the State when the cause of action shall accrue against him." If he "depart from and reside out of the State after such cause of action shall have accrued, the time of his absence shall not be taken as any part of the time limited for the commencement of such action." Although a natural person who has thus departed may return frequently and remain long, yet if his domicil continues in another State, the time of his non-residence forms no part of the time limited by the statute. Burroughs v. Bloomer, 5 Den., 532. It was legally impossible for the Tioga Railroad Company to depart from the State of Pennsylvania. Of course, it could not bring its residence into the State of New York. It was resident out of the State when the cause of action accrued against it, and has ever since so continued. There is no limitation of the time in which the action may be brought in such a case.

Statutes of Limitation are in their nature arbitrary. They rest upon no other foundation than the judgment of a State as to what will promote the interests of its citizens. Each determines such limits and imposes such restraints as it thinks proper.

In Angell on the Limitation of Actions at Law, at p. 14. sec. 24, the author says: "Under the 34th section of the Judiciary Act of 1789, 1 Stat. at L.. 73, the Acts of Limitations of the several States, where no special provision has been made by Congress, form a rule of decision in the courts of the United States, and the same effect is given to them as is given in the state courts. In accordance besides, to a steady course of decision for many years, the federal judiciary feel it an incumbent duty carefully to examine and ascertain if there be a settled construction by the state courts of the statutes of the respective States where they are exclusively in force, and to abide by and follow such construction when found to be settled. There is no unwritten or common law of the Union. The rule of action is found in the different States as it may have been adopted and modified by legislation and a course of judicial decisions. The rule of decision must be found in the local law, written or unwritten.

McCluny v. Silliman, 3 Pet., 270; Bk.v. Daniel, 12 Pet., 32; Harpending v. Dutch Church, 16 Pet., 455; Porterfield v. Clark, 2 How., 76.

The decisions of the courts of the State of New York upon the question before us, directly and in its collateral aspects, have been uniform and consistent. They all sustain the view we have taken, Burroughs v. Bloomer, 5 Den., 532, holding that the time spent by a person in this State while domiciled elsewhere, is not to be deemed as a part of the time required for the running of the statutes; McCord v. Woodhull, 27 How. Pr., 54, to the same purport; Olcott v. R. R. Co., 20 N. Y., 210, Rathbun v. R. R. Co., [supra], together with the cases already cited, showing that a judgment obtained by service of a summons upon the agent or officer of a foreign corporation is not personal and conclusive; and Blossburg R. R. Co. v. R. R. Co., 5 Blatchf., 387, in the Circuit Court of the United States, heretofore referred to, all tend

to the same conclusion.

We have not been referred to a single decision of the New York courts in conflict with these authorities, nor are we aware of any. We are not at liberty to depart from this settled construction, were we inclined to do so.

Gelpcke v. Dubuque, 1 Wall., 175 [68 U. S., XVII., 520]; 1 Stat. at L., 92, note A.

There is nothing in the rulings upon the trial in regard to the admission or exclusion of evidence that requires our interference.

of Mr. Justice Hunt. Mr. Justice Field concurred in the opinion

Mr. Justice Miller, dissenting:

I dissent from that part of the opinion of the court which relates to the defense of the Statute of Limitations.

If the State Courts of New York have construed their statute concerning service of process to mean that no such service will authorize a judgment against a corporation of another State, which will be valid beyond the limits of the State of New York, it is a most extraordinary and unnecessary decision, for it is the province of those other States, or of the federal judiciary, to declare the effect of such judgment, outside of the State of New York. Besides it is not asserted that any such decision has ever been made, except with reference to its effect upon the right of such corporations to plead the Statute of Limitations in the state courts of New York. Nor do I believe that the courts of any State of the Union, except New York, have ever held that a person doing business within the State and liable at all times to be sued and served personally with process cannot avail himself of the Statute of Limitations, if the time prescribed by it to bar such action has elapsed before it was commenced. The liability to suit where process can at all times be served, must in the nature of things be the test of the running of the statute. A different rule applied to an individual because he is a citizen or resident of another State, is a violation at once of equal justice and of the rights conferred by the 2d section of the 4th article of the Federal Constitution, that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.

I can hardly believe, therefore, that the New York Statute means that of two men doing business in adjoining houses in the City of New York, one may avail himself of the statute of the State for the limitation of actions, when the