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doors. There is nothing stated which warrants us in doubting that all the transactions were in good faith.

Although the first question does not refer in terms to the statutes of Illinois, it is proper to add that we see no sufficient reason for denying to the place of storage the character of a public warehouse. "Public warehouses of Class C shall embrace all other warehouses or places where property of any kind is stored for a consideration." Rev. Stat. chap. 114, par. 121, § 2. These sweeping words embrace any place so used, whether owned or hired by the warehousemen; and, if so, they embrace as well a place hired of the owner of the goods as one hired of anybody else. See Sumner v. Hamlet, 12 Pick. 76; Gough v. Everard, 2 Hurlst. & C. 1. If we are right in this, then the indorsement of the receipts transferred the property in the leather by the express terms of the statute already referred to. Rev. Stat. chap. 114, § 24. If not, we should come to the same result by the common law; for even if we did not adopt the argument of Mr. Benjamin, to which we have referred above, against the earlier view of Blackburn on Sales, 297, followed in Farina v. Home, 16 Mees. & W. 119, still all the authorities agree that, if an assent in advance is not enough, yet, as soon as the bailee attorns to the assignee, the delivery is complete. The statement has not this point in view. But we should suppose that a fuller statement would make it plain that the warehouse company knew and assented to the transfers to the trust company, if that be material, which we do not imply. See also Union Trust Co. v. Trumbull, 137 Ill. 146, 173, 27 N. E. 24; Millhiser Mfg. Co. v. Gallego Mills Co. 101 Va. 579, 589, 44 S. E. 760; Gibson v. Stevens, 8 How. 385, 399, 12 L. ed. 1123, 1129.

that a carrier who breaks bulk and takes the goods is guilty of larceny. Y. B. 13 Edw. IV. 9, pl. 5. The act is a trespass, as agreed in Keilwey, 160, pl. 2; Ward v. Turner, 1 Dick. 170, 172, 2 Ves. Sr. 431, 443; Moore v. Mansfield, 182 Mass. 302, 303, 95 Am. St. Rep. 657, 65 N. E. 398. So, again, if the goods had been in a place under the exclusive control of the company, even without the company's knowledge, they would have been in the company's possession. Elwes v. Brigg Gas Co. L. R. 33 Ch. Div. 562, 568; Reg. v. Rowe, Bell, C. C. 93. See Barker v. Bates, 13 Pick. 255, 257, 261, 23 Am. Dec. 678; Northern P. R. Co. v. Lewis, 162 U. S. 366, 378, 379, 382, 41 L. ed. 1002, 1007, 1008, 16 Sup. Ct. Rep. 831. When there is conscious control, the intent to exclude and the exclusion of others, with access to the place of custody as of right, there are all the elements of possession in the fullest sense. Gough v. Everard, 2 Hurlst. & C. 1, 8. Ancona v. Rogers, L. R. 1 Exch. Div. 285. We deal with the case before us only. No doubt there are other cases in which the exclusive power of the so-called bailee gradually tapers away until we reach those in which the courts have held as matter of law that there was no adequate bailment. Tradesmen's Nat. Bank v. Thomas Kent Mfg. Co. 186 Pa. 556, 65 Am. St. Rep. 876, 40 Atl. 1018; Drury v. Moors, 171 Mass. 252, 50 N. E. 618. So, different views have been entertained where the owner has undertaken to constitute himself a bailee by issuing a receipt. We may concede, for purposes of argument, that all the forms gone through in this case might be emptied of significance by a different understanding between the parties, which the form was intended to disguise. But no such understanding is stated here, and it cannot be assumed. There is no reason even to infer it as a conclusion of fact, if such inferences were open to us to draw. It is true that the evident motive of Flanders was to get his goods represented by a document, for convenience of pledging, rather than to get them stored, and the method and amount of compensation show it. But that was a lawful motive, and did not invalidate his acts, if otherwise sufficient. He could get the goods by producing the receipt and paying charges, of course, but there is no hint that the company did not insist upon its AMERICAN AUTOMATIC LOOM COMcontrol. It is suggested that the goods gave credit to the owner. But, in answer to this, it is enough to say that the goods were not visible to any one entering the shop. They could be surmised only by going to the basement, where signs gave notice of the company's possession, and probably could be

As we answer the first and second questions in the affirmative, it is unnecessary to consider the third.

It will be so certified.

Mr. Justice Harlan, Mr. Justice Brewer, and Mr. Justice Day dissent.

(198 U. S. 477) DANIEL R. KENDALL, Appt.,

v.

PANY.

Direct appeal from circuit court-when ju risdiction in issue-writ and process— service on treasurer of foreign corporation.

seen only if the company unlocked the 1. The question of the validity of the service

a subpoena issued by a Federal circuit court | defendant corporation; that the domicil and upon the resident treasurer of a foreign cor- residence of the defendant were in the state portion involves the jurisdiction of that of West Virginia; the purpose of its incorcourt as a Federal court so as to sustain a direct appeal to the Supreme Court of the poration was the development of a selfUnited States under the act of March 3, 1891 feeding loom attachment, which gives to (26 Stat. at L. 827, chap. 517, U. S. Comp. the ordinary loom a continuous supply of Stat. 1901, p. 549), § 5, from an order set-filling thread. It was further stated in the

ting aside the service.

2. Service of a subpoena on the resident treasurer of a foreign corporation is not sufficient to give the court jurisdiction over such corporation, where, at the time of such service, it was doing no business within the state, and never had done any business there since its incorporation.

[No. 541.]

affidavit that the corporation was the owner of divers patents, but it had never manufactured merchandise. It had never made a sale, and it had never engaged in the transaction of the business for which it was incorporated. It had no business or assets in the state of New York, and had no office or place of business there, and those of its officers who resided in that state were not there officially, or as representing any busi

Submitted April 24, 1905. Decided May ness or interest of the corporation. After

29, 1905.

PPEAL from the Circuit Court of the United States for the Southern District of New York to review an order setting aside the service of a subpoena on the resident treasurer of a foreign corporation. Affirmed.

the formation of the corporation, and between the years 1898 and 1901, the meetings of the directors of the company were held at different places in the city of New York where accommodations could be secured,sometimes at the office of the counsel of the company in New York, and sometimes at a hotel; but since August 10, 1901, there had been no meeting, either of the stockholders or of the directors; and on the last

Statement by Mr. Justice Peckham: This suit was brought against the de- mentioned date the stockholders were notifendant, appellee, for the purpose of obtain-fied that the company had no funds with ing a discovery of all the matters referred to in the bill of complaint, and to have a receiver appointed of the assets of the company within the state of New York, and for an accounting by the directors of the defendant, and for other relief.

which to pay the franchise taxes which were due to the state of West Virginia, and affiant averred that no funds had since been provided for that purpose; that since that date the company had transacted no business, had maintained no office in the state The bill alleged that the plaintiff, at the of New York, and that an action had been time of filing his bill, was a citizen of the commenced by the state of West Virginia United States and of the state, county, and against it to terminate and forfeit its corcity of New York; that the defendant was porate franchise. The sole assets of the a stock corporation, organized in March, company consisted of two automatic looms 1898, and existing under the laws of the and tools and machinery employed in the state of West Virginia, and was incorpo- making thereof and its patents. The looms, rated to engage in the business of manufac- with machinery and tools, were in Attleturing and selling looms and weaving ma- boro, Massachusetts. The letters patent chinery, and that, by its charter, its prin- were also in the possession of a Mr. Mosscipal office and place of business was in the berg, in Attleboro, Massachusetts, who had city, county, and state of New York. The made divers attempts to improve the looms. bill of complaint, together with a writ of The company had no bank account, no office subpoena requiring the defendant to answer force, and no employees. It had never the bill, were served in the city of New York upon a person who had been the treas- reached the stage of the active transaction urer of the defendant corporation. Within of business, and such assets as it possessed the proper time the defendant appeared specially, for the sole purpose of questioning the jurisdiction of the court, and of moving to set aside the attempted service. The motion was founded upon the affidavit of Joseph H. Emery, in which he averred, among other matters, that the service of the subpoena had been made upon him in the city of New York, because (as he believed) he had been the treasurer of the 25 S. C.-49.

were beyond the jurisdiction of the court. No one had been elected treasurer in place of Mr. Emery, so far as the record shows, and he was the treasurer of the company when service was made upon him.

An affidavit in opposition was filed by the complainant, but the facts above set forth The circuit were substantially undenied. court, upon the hearing, granted the motion of the defendant to set aside and declare

v.

(198 U. S. 561)

null and void the attempted service on the | GREAT WESTERN MINING & MANUcorporation of the bill of complaint and FACTURING COMPANY, by L. C. Black, writ of subpoena by the service thereof upon its Receiver, Petitioner, Joseph H. Emery, on or about the 13th day of December, 1904. The complainant has appealed directly to this court from the order of the circuit court setting aside the service of the subpoena.

Mr. Noah C. Rogers for appellant.
Mr. Benjamin N. Cardozo for appellee.

Mr. Justice Peckham, after making the foregoing statement, delivered the opinion of the court:

CHARLES A. HARRIS et al., Executors of
D. B. Harris, Deceased.

Receivers right to sue outside of state of appointment.

The receiver of a corporation, with no other
title to its assets and property than that de-
rived from his appointment in a suit brought
to adjudicate and enforce liens and subject
the property to the payment of the claims of
creditors, cannot be empowered by the couri
of his appointment to sue in a foreign juris-
diction, either in his own name or in that of
the corporation, to realize its assets.
[No. 217.]

29, 1905.

States Circuit Court of Appeals for the WRIT of Certiorari to the United Second Circuit to review a decree which reversed a decree of the Circuit Court for the District of Vermont, in favor of the re

It is objected, in the first place, by the appellee, that the appellant had no statutory right to appeal directly to this court from the order setting aside the service of the subpoena. It is asserted that the case does not involve the jurisdiction of the Argued April 14, 17, 1905. Decided May court below within the meaning of § 5 of the act of March 3, 1891 [26 Stat. at L. 827, chap. 517, U. S. Comp. Stat. 1901, p. 549], inasmuch as the jurisdiction of the circuit court as a Federal court is not questioned, the jurisdiction being denied upon grounds alike applicable to any other judicial tribunal, state or Federal, under the same circumstances. This case is, however, on that point governed by that of Board of Trade v. Hammond Elevator Co. (decided at this time), 198 U. S. 424, 25 Sup Ct. Rep. 740, 49 L. ed., where it is held that the order is reviewable by this court under the section above mentioned.

Regarding the case as properly here, the question is whether the service made upon the treasurer of the appellee corporation was a valid service upon the corporation itself. We think it was not. It is perfectly apparent that the corporation was, at the time of the service on the treasurer, doing no business whatever within the state of New York, and that it had never done any business there since it was incorporated in the state of West Virginia. While we have lately held that, in the case of a foreign corporation, the service upon a resident director of the state where the service was made was a good service where that corporation was doing business within that state (Pennsylvania Lumbermen's Mut. F. Ins. Co. v. Meyer, 197 U. S. 407, 25 Sup. Ct Rep. 483, 49 L. ed.), yet such service

is insufficient for a court to acquire jurisdiction over the corporation where the company was not doing any business in the state, and was situated like this company at the time of the service upon the treasurer. Conley v. Mathieson Alkali Works, 190 U. S. 406, 47 L. ed. 1113, 23 Sup. Ct. Rep. 728. The order of the Circuit Court was right, and is affirmed.

ceiver of a foreign corporation in a suit to realize its assets. Affirmed.

See same case below, 128 Fed. 321.

Statement by Mr. Justice Day:

filed in the circuit court of the United This case was begun by bill in equity,

States for the district of Vermont, in the

name of the Great Western Mining & Man-
tion, by L. C. Black, its receiver, against
ufacturing Company, a Kentucky corpora-
B. D. Harris, a citizen of the state of Ver-
mont. It is averred that the corporation
was duly organized under the laws of the
state of Kentucky. In substance the bill
sets forth: That the Great Western Min-
ized by the Kentucky legislature on January
ing & Manufacturing Company was organ-
19, 1856, for the purpose of owning and op-
On or about February 10, 1859, it became
erating mining property, and selling coal.
the owner of coal properties to the value of
about $40,000, situated in Lawrence county,
Kentucky. The capital stock of said com-
shares of $100 each. That previous to No-
pany was $200,000, divided into 2,000
vember 10, 1887, the capital stock of the
company was owned as follows:
B. D. Harris, the defendant here-

in, 600 shares, par value.... $60,000 00
G. D. Harris, 600 shares, par
value

John Carlisle, 440 shares, par
value.

George W. Carlisle, 300 shares,
par value

60,000 00

44,000 00

30,000 00

James C. Holden, 4 shares, par value...

Loren Hinsdale, 4 shares, par value...

George S. Richardson, 52 shares, par value

5,200 00 On November 10, 1887, the stockholders increased the capital stock in the sum of $50,000, the same being distributed among

the stockholders as follows:

To B. D. Harris, 150 shares, par value

To G. D. Harris, 150 shares, par value...

To John Carlisle, 110 shares, par value

[blocks in formation]

15,000 00

100 00

100 00

[The record shes that this increase was in fact made on January 11, 1888, in pursuance of a meeting authorized to be called at that date in the meeting of November 10, 1887, and certificates issued January 14, 1888.]

which

of whom the defendant was one, ostensibly 400 00 in consideration of alleged betterments of said mining property, which betterments, it 400 00 was pretended, were made and paid for out of the net earnings of the company, which, it was represented, had increased the value of the property belonging to the stockbetterments had been made, and if made holders. Complainant alleges that no such they were paid for out of money borrowed upon the credit of the company, for which an indebtedness then existed and still exists. $15,000 00 That in fact there had been no net earnings which had been put into betterments by the company, and that the issue of said stock was without consideration, illegal and void, 11,000 00 and a breach of duty upon the part of the stockholders and the directors of the cor7,500 00 poration to its creditors. That said stock so issued still remains outstanding in the 1,300 00 names of the parties to whom it was issued, or their assignees. That on May 13, 1889, the directors of the company, of whom the defendant Harris was one, and who were also stockholders in the company, for the purpose of defrauding said company, and abstracting the assets of the company for their own use and benefit, the corporation then being insolvent, without means to pay its floating indebtedness, then amounted to $100,000, or more, agreed that they would obtain a loan of $300,000 for said company, said loan to be evidenced by bonds to the number of 300, in the denomination of $1,000 each, to be secured by mortgage upon the property of the company. That the issues of stock had been made upon the consideration that certain betterments had been added to the property, and had been paid for out of the profits of the operation thereof, which profits would otherwise belong to the stockholders, when in truth and fact the said company was largely insolvent, and had a mortgage debt of about $60,000 upon it, and a floating debt of $100,000 or more. In fact, said company had not made any net profits whatever, and 200 00 said betterments had not been made at all; or, if made, had been paid for out of the earnings of the company, and no consideration than that herein stated was ever paid by the stockholders for the stock issued to them. That it was for the purpose of carrying out the scheme of abstracting from the company money arising from the sale of the bonds, and for that purpose only, that said stock was issued to the defendant Harris and others. That said bonds were sold at a price of 85 cents on the dollar, including a bonus of 50 per cent of the par value of said bonds in the stock of the company; that is, a purchaser of a $1,000 bond was entitled to have with said bond $500 of the capital stock of the company. That in pur

On April 22, 1889, a further increase of capital stock was had by adding 1,000 shares of $100 each, which was distributed

[blocks in formation]

To George S. Richardson, 26 shares, par value

To James C. Holden, 2 shares, par value

To Loring Hinsdale, 2 shares, par value

$30,000 00

30,000 00

22,000 00

15,000 00

2,600 00

200 00 The complainant avers that at the time the increases of capital stock were made and carried out, the stockholders had formed a plan of issuing bonds and selling the same, and that the issues and distribution of said stock were made for the purpose of defrauding said company, and obtaining, without consideration, the aforesaid shares of capital stock, and for the purpose of selling the same to the company in connection with the said loan, and defrauding the company out of a part thereof. That said issues of capital stock were made by the shareholders and board of directors,

!

suance of the combination aforesaid the | respecting the matters and things set up in
said directors and stockholders furnishing the bill, and that the defendant be required
said bonus stock were paid for the same to pay to the complainant the sums which
from the proceeds of the sale of the bonds. may be found to be due by reason of the
The stock was furnished as follows, in pur- matters and things set forth, and for gen-
suance of the said arrangement:
eral relief. An answer and replication were
filed, and the issues made up were heard
$45,000 00 upon the pleadings and testimony. The

By B. D. Harris, 450 shares, par
value

[blocks in formation]

45,000 00

33,600 00

22,500 00

3,900 00

That out of the proceeds of the sale of the
bonds the sum of $75,000 was distributed
among the parties, as follows:

To B. D. Harris, the defendant
herein...

[blocks in formation]

circuit court found the estate of B. D. Harris, he having died pending the suit, liable in the sum of $15,000, being the amount Harris received from the company in exchange for the 300 shares of stock issued to him in April, 1889, and held that the estate was not liable on account of the amounts received by him for stock previously issued to him, and was not liable to account for the amounts taken by other of ficers, directors, or stockholders of the company. The case in the circuit court is reported in 111 Fed. 38. Upon cross appeals the circuit court of appeals for the second 22,500 00 circuit reversed the judgment of the court below upon the ground that the circuit court had no jurisdiction of the action, as the same could not be brought by the receiver in the name of the corporation, and if it could be maintained by the corporation, or in its behalf, no case was made for a recovery, because of the consent of the stockholders to the transactions complained of. 128 Fed. 321. The order appointing the receiver in the circuit court is found in the record, and is as follows:

$22,500 00

16,800 00
1,950 00
11,250 00

That, as a matter of fact, when the stock was contributed the company was insolvent, and could not carry on its business without making the said loan; that said stock was worthless, and was sold to the company at 50 cents on the dollar for the purpose above mentioned, and thereafter said stock was transferred to the purchasers of the bonds. Then follow allegations as to the mismanagement of the company, and the wrongful payment of dividends, and the averment that on or about September 12, 1892, one of the creditors of the company was compelled to make an application to the United States circuit court of Kentucky, wherein a request was made for the appointment of a receiver of the property and franchises of the company for the purpose of realizing its assets, and distributing them among its creditors; that in said proceedings all of the property of the Great Western Mining & Manufacturing Company was sold, and was found to be of the value of $75,666.66, which left a large floating indebtedness of about $90,000, besides a large balance due upon the bonded indebtedness, aggregating about $270,000; that in said proceedings in the United States court for the district of Kentucky, L. P. Black was appointed receiver of the assets of the company, for the purpose of realizing upon the same for the benefit of its creditors, and it is averred that, by special order of the United States court, said receiver had been directed to prosecute this suit, either in his own name or that of the company, as may be proper. The prayer of the bill is for an accounting

"The above cause coming on this day to be heard upon the motion of complainant for appointment of a receiver, and having been fully heard and considered, it is ordered by the court that said motion be granted, and that the order hereinbefore entered, appointing L. C. Black as temporary receiver, be continued, and said L. C. Black be and he is hereby appointed receiver of all the property, rights in action, choses in action, and all assets of every description, of the defendant, The Great Western Mining & Manufacturing Co., with all the powers and authority conferred by the order appointing him temporary receiver herein; and that he is to act and continue to act under the orders hereinbefore made, and that he hold and keep the property and assets arising from the funds of said business, or that may come into his hands, subject to such order as may be made from time to time; and it is also ordered that he shall have power to purchase such current supplies as are or may be needed in the proper conduct and operation of the business of said company."

The application for the order to bring this action sets forth:

"The receiver represents that he has ascertained from the books and records of the

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