*736

passed to carry the provision of the constitution into effect makes this plain, for the certificate which it requires to be filed by a foreign corporation must designate the principal place in the state where the business of the corporation is to be carried on. The meaning of the phrase "to carry on," when applied to business, is well settled. In Worcester's Dictionary the definition is: "To prosecute, to help forward, to continue; as to carry on business." The definition given to the same phrase in Webster's Dictionary is: "To continue, as to carry on a design; to manage or prosecute, as to carry on husbandry or trade." The making in Colorado of the one contract sued on in this case, by which one party agreed to build and deliver in Ohio certain machinery and the other party to pay for it, did not constitute a carrying on of business in Colorado.

The obvious construction, therefore, of the constitution and the statute is that no foreign corporation shall begin any business in the state, with the purpose of pursuing or carrying it on, until it has filed a certificate designating the principal place where the business of the corporation is to be carried on in the state, and naming an authorized agent, residing at such principal place of business, on whom process may be served. To require such a certificate as a prerequisite to the doing of a single act of business, when there was no purpose to do any other business or have a place of business in the state, would be unreasonable and incongruous.

The case of Potter v. Bank of Ithaca, 5 Hill, 490, tends to support this conclusion. The charter of the bank provided that its operations of discount and deposit should be carried on in the village of Ithaca, and not elsewhere. The cashier discounted a note in the city of New York, for the purpose of securing a demand due the bank, and the fact that the note was discounted in New York city was set up as a defense to a suit on the note. In giving judgment for the bank, NELSON, C. J., said the statute "obviously relates to the regular and customary business operations of the bank, and does not apply to a single transaction like the one in question." A similar ruling was made in Suydam v. Morris Canal & Banking Co. 6 Hill. 217. See, also, Graham v. Hendricks, 22 La. Ann. 523.

We base the conclusion that the demurrer to the defendant's answer should have been sustained, upon the interpretation we have given to the constitution and statute, and do not find it necessary to decide whether their provisions invade the exclusive right of congress to regulate commerce among the several states. We have examined all the cases cited by the defendants to support their interpretation.1 In none of them was the statute construed similar in its language or provisions to the constitution or statute under consideration, and the cases can have no controlling weight in the present controversy.

We are of opinion that there was error in the judgment of the circuit court. The judgment must therefore be reversed, and the cause remanded for further proceedings, in conformity with this opinion; and it is so ordered.

MATTHEWS, J., concurring. Mr. Justice BLATCHFORD and myself concur in the judgment of the court announced in this case, but on different grounds from those stated in the opinion. Whatever power may be conceded to a state to prescribe conditions on which foreign corporations may transact business within its limits, it cannot be admitted to extend so far as to prohibit or regulate commerce among the states; for that would be to invade the jurisdiction which, by the terms of the constitution of the United States, is conferred exclusively upon congress.

In the present case, the construction claimed for the constitution of Colo

1 In re Comstock, 3 Sawy. 218; Bank of British Columbia v. Page, 46 Or. 31; Thorne v. Travelers' Ins. Co. 80 Pa. St. 15; Roche v. Ladd, 1 Allen, 441; Rising Sun Ins. Co. v. Slaughter, 20 Ind. 520; National Mut. F. Ins. Co. v. Pursell, 10 Allen, 231; Cincinnati Mut. Assur. Co. v. Rosenthal, 55 Ill. 85; Etna Ins. Co. v. Harvey, 11 Wis. 412.

rado, and the statute of that state passed in execution of it, cannot be extended to prevent the plaintiff in error, a corporation of another state, from transacting any business in Colorado which, of itself, is commerce. The transaction in question was clearly of that character. It was the making of a contract in Colorado to manufacture certain machinery in Ohio, to be there delivered for transportation to the purchasers in Colorado. That was commerce; and to prohibit it, except upon conditions, is to regulate commerce between Colorado and Ohio, which is within the exclusive province of congress. It is quite competent, no doubt, for Colorado to prohibit a foreign corporation from acquiring a domicile in that state, and to prohibit it from carrying on within that state its business of manufacturing machinery. But it cannot prohibit it from selling in Colorado, by contracts made there, its machinery manufactered elsewhere, for that would be to regulate commerce among the states. In Paul v. Virginia, 8 Wall. 168, the issuing of a policy of insurance was expressly held not to be a transaction of commerce, and therefore not excluded from the control of state laws; and the decision in that case is predicated upon that distinction. It is, therefore, not inconsistent with these views.

(113 U. S. 742)

GREGORY and others v. HARTLEY and another.

(March 16, 1885.)

1. REMOVAL OF CAUSE-PETITIONER MUST FIRST SHOW CAUSE-PETITION NOT ENOUGH. A state court is not bound to surrender its jurisdiction, by removal under the act of 1875, until a case is made which, on the face of the record, shows that the petitioner is entitled to such a removal. The mere filing of a petition is not enough, unless, when taken in connection with the rest of the record, it shows on its face that the petitioner has, under the statute, the right to take the suit to another tribunal.

2. SAME TIME OF FILING PETITION-FIRST TERM AT WHICH CASE TRIABLE.

The act of 1875, c. 137, (18 St. 470,) provides that the petition for removal must be filed at or before the term at which the cause could be first tried, and before the trial; that is, the first term at which the cause could have stood for trial had the parties taken the usual steps as to pleadings and other preparations.

3. SAME-EFFECT OF HEARING ON DEMURRER TO COMPLAINT.

There cannot be a removal after a hearing on a demurrer to a complaint because it does not state facts sufficient to constitute a cause of action.

In Error to the Supreme Court of the State of Nebraska.

Chas. O. Whedon, for plaintiffs in error. Walter J. Lamb and E. E. Brown, for defendants in error.

WAITE, C. J. This is a writ of error to reverse a judgment of the supreme court of Nebraska, on the single ground that the supreme court decided that, the district court of Lancaster county had jurisdiction to proceed with the suit after a petition for the removal thereof to the circuit court of the United• States had been made and filed in the district court. The transcript, which has been returned with the writ, is evidently very imperfect, and it purports to contain only a part of the record below. It is not authenticated by the clerk as a full transcript, and it shows on its face that much which is important to a correct understanding of the case has been omitted. From what has been returned, however, it sufficiently appears that the suit was originally brought in the district court of Lancaster county, by Milo F. Kellogg against Luke Lavender, James E. Phillpot, John S. Gregory, E. Mary Gregory, Thomas J. Cantlon, R. F. Parshall, and perhaps some others, to enforce the specific performance of a contract in writing, entered into on the thirtieth of July, 1872, between the plaintiff Kellogg and the defendant Lavender for the sale by Lavender to Kellogg of certain lots in Lincoln, Nebraska. The price to be paid was $2,500. Of this amount $500 was paid in hand, and for the remaining $2,000 Kellogg executed two notes of $1,000 each, payable to the

order of Lavender: one on the first day of May, 1873, and the other on the first day of May, 1874, with interest at the rate of 12 per cent. per annum. At what time the suit was begun nowhere appears, but an amended petition was filed on the twenty-second of November, 1879, making Joseph W. Hartley, Reuben R. Tingley, and many others, parties. To this petition Hartley filed an answer and cross-petition on the second of December, 1879, Tingley an answer on the first of December, 1879, and Parshall an answer and crosspetition at some time before May 17, 1880. The answer and cross-petition of Hartley are found in the record, and from them it appears that he claimed and sought to enforce a lien on the property as security for the payment of money he advanced Kellogg to aid in paying the note due to Lavender in May, 1873. The answer of Tingley and the answer and cross-petition of Parshall are not copied into the transcript. On the seventeenth of May, 1880, the two Gregorys, Lavender, Cantlon, and Phillpot filed demurrers to the answers and cross-petitions of Hartley and Parshall, and to the answer of Tingley, on the ground that they did not state facts sufficient to constitute a cause of action or a defense. These demurrers were heard and overruled by the court on the seventeenth of August, 1880, and 30 days given the demurring defendants to answer.

At the time of the filing of the amended petition the legal title to the property was in E. Mary Gregory, the wife of J. S. Gregory, Lavender having conveyed it to Phillpot and Cantlon after he made his contract with Kellogg, and they having afterwards sold and conveyed it to Mrs. Gregory. On the twenty-eighth of November, 1879, Mrs. Gregory settled all matters in dispute with Kellogg, and he assigned to her his contract with Lavender. After this settlement, on the twenty-second of September, 1880, Mrs. Gregory filed her answer to the amended petition, in which she set up her title to the property and her adjustment of the controversy with Kellogg. On the twentyseventh of September, 1880, Lavender, Phillpot, and Cantlon filed their answer to the cross-petition of Hartley. On the fifth of November, 1880, leave was given Parshall and Tingley to file amended answers in 40 days, and on the thirteenth of December, 1880, Parshall did file his answer and cross-petition, claiming to be the owner of Kellogg's note to Lavender falling due in 1874, and asking to enforce a lien on the property for its payment. At the same time Tingley filed his answer and cross-petition, in which he claimed an interest in the note due in 1874, and prayed affirmative relief in his own behalf. On the third of March, 1881, Lavender, Phillpot, Cantlon, and Mrs. Gregory, with leave of the court, filed a reply to the answer and cross-petition of Parshall. On the twenty-third of March, 1882, leave was granted Tingley to amend his pleadings, and to Mrs. Gregory to file an amended answer in 30 days. Mrs. Gregory did file her amended answer to the cross-petition of Hartley on the seventeenth of April, 1882, and, on the fifteenth of June thereafter, the Gregorys, Lavender, Cantlon, Phillpot, and Kellogg presented their petition for the removal of the cause to the circuit court of the United States. That petition, so far as it is material to the question now under consideration, is as follows:

"Your petitioners now show to this court that the plaintiff herein, Milo F. Kellogg, is a citizen of the state of Missouri; defendant Thos. J. Cantlon is a citizen of the state of Colorado;*defendant Reville F. Parshall is a citizen of the state of Wisconsin; defendant J. W. Hartley is a citizen of the state of Ohio; and that defendants E. Mary Gregory, James E. Phillpot, J. S. Gregory, and Luke Lavender are citizens of the state of Nebraska; and that said Thos. J. Cantlon and Reville E. Parshall were non-residents of the state of Nebraska at the commencement of this action. That none of the other defendants in said cause have made any appearance or set up any claims of interest in the cause or controversy, and that the defendants named herein are the only ones appearing to have any interest therein. Your petitioners further represent

that no final hearing or trial of said cause has been had, but said cause is now pending for trial in this court."

Upon the presentation of this petition the district court refused to surrender its jurisdiction, and the petitioners excepted. On the eleventh of November, 1882, a decree was entered sustaining the several claims of Hartley and Tingley, and establishing liens in their favor on the property in dispute. From this decree the Gregorys, Phillpot, Cantlon and Lavender appealed to the supreme court of the state, and assigned for error the refusal of the district court to surrender its jurisdiction on the presentation of the petition for removal. The supreme court sustained the action of the district court, and to review that decision this writ of error was brought.

To our minds it is very clear that there was no error in the rulings of the courts below upon the federal question involved, which alone can be considered by us. The district court was not bound to surrender its jurisdiction until a case was made which on the face of the record showed that the petitioners were in law entitled to a removal. The mere filing of a petition is not enough, unless, when taken in connection with the rest of the record, it shows on its face that the petitioner has, under the statute, the right to take the suit to another tribunal. Railroad Co. v. Koontz, 104 U. S. 14.

The act of 1875, c. 137, (18 St. 470.) which governs this case, provides that the petition for removal must be filed at or before the term at which the cause could be first tried, and before the trial. This has been construed to mean the first term at which the cause is in law triable,-the first term in which the cause would stand for trial if the parties had taken the usual steps as to pleadings and other preparations. Babbitt v. Clark, 103 U. S. 606; Pullman Palace Car Co. v. Speck, 113 U. S. 87; S. C., ante, 374. It has also been decided that there cannot be a removal after a hearing on a demurrer to a complaint because it does not state facts sufficient to constitute a cause of action. Alley v. Nott, 111 U. S. 472; S. C. 4 SUP. CT. REP. 495; Scharff v. Levy, 112 U. S. 711; S. C.,ante, 360. Either one of these rules is fatal to the present case. If we treat the suit as originally one to enforce the liens of Hartley and Tingley upon the property as security for the payment of the amounts due them respectively, it was begun when their respective answers and cross-petitions claiming affirmative relief were filed, and this was certainly not later than December 13, 1880, or a year and a half before the petition for removal was presented. Five terms of the court had passed, at either one of which the case would have been triable if the parties had taken the usual steps as to pleadings and preparations. In fact, more than a year had elapsed from the time the issues had actually been made up on the pleadings of some of the parties.

Then, again, the answers and cross-petitions of the claimants of these several liens are to be treated as their petitions for relief upon their respective causes of action. The answer and cross-petition of Hartley, the original answer of Tingley, and the original answer and cross-petition of Parshall, were all demurred to on the seventeenth of May, 1880, and the demurrers overruled, nearly two years before the petition for removal was filed. After the hearing on the demurrers it was too late, under our decisions, to ask for a removal.

Without considering any of the other objections to the removal which might be urged, the judgment is affirmed.

(114 U. S. 57)

PUTNAM and another v. INGRAHAM.

(March 23, 1885.)

1. REMOVAL OF CAUSE-JOINT ACTION-SEPARATE DEFENSES.

A separate controversy is not introduced into a case by separate defenses to the same cause of action. Louisville & N. R. Co. v. Ide, ante, 735.

2. SAME-DEFAULT OF ONE OF SEVERAL JOINT DEFENDANTS.

The default of one of several joint defendants does not prejudice the plaintiff in his right, in case he sustains the allegations of his complaint, to a joint judgment against all the defendants.

In Error to the Circuit Court of the United States for the District of Connecticut.

H. E. Dickson, for plaintiffs in error. Chas. E. Perkins, for defendant in

error.

WAITE, C. J. This is a writ of error for the review of an order of the circuit court remanding a suit to a state court. The suit was brought in the superior court of the county of Hartford, Connecticut, by George E. Ingraham, the defendant in error, a citizen of Connecticut, against N. D. Putnam and Henry Earle, citizens of New York, and W. G. Morgan, a citizen of Connecticut, as partners in business under the name of Putnam, Earle & Co., to recover a balance claimed to be due from the partnership on an account for money lent, paid out, and expended, and upon a note of $5,000 made by W. G. Morgan to the order of Putnam, Earle & Co., and by the firm indorsed to Ingraham. The complaint contained simply the common counts, but a bill of particulars subsequently filed disclosed the true nature of the claim to be the note, and an account for the purchase and sale of stocks beginning August 17, 1883, and ending February 29, 1884.

The defendants Putnam and Earle filed a separate answer, which contained (1) a general denial of all the allegations in the complaint; (2) an averment as to the account that the alleged loans were all made to the defendant Morgan for his individual and private use, and not to the firm; (3) an averment as to the note that it was given for money loaned to W. G. Morgan alone for his individual use, and not to the firm, and that it was indorsed by Morgan in the name of the firm by collusion between him and Ingraham, and with intent to defraud Putnam and Earle; and (4) a statement that the partnership of Putnam, Earle & Co. was not formed until January 2, 1884, and that all the transactions in the bill of particulars before that date took place, if at all, between the plaintiff and William G. Morgan, who, during the years 1882 and 1883, was only the agent of Putnam and Earle, and not a partner with them, and that as to none of the items in the bill, dated in the year 1883, were they under any joint liability with Morgan as partners.

Morgan has never answered the complaint, and as to him the case stands on default. After filing their answer the defendants Putnam and Earle presented a petition to the superior court for the removal of the suit to the circuit court of the United States for the district of Connecticut. The material part of this petition, aside from a statement of the citizenship of the parties, is as follows: "And your petitioners further say that in the suit above mentioned there is a controversy which is wholly between citizens of different states, and which can be fully determined between them, to-wit, a controversy between the present petitioners, N. D. Putnam and Henry Earle, and the said George E. Ingraham and William G. Morgan, as by the pleadings in said cause will more fully appear." Upon the presentation of this petition the superior court declined to enter an order for the removal of the cause. Thereupon the petitioners entered a copy of the record in the circuit court of the United States. This being done, the plaintiff, Ingraham, moved that