weight of authority, the most that can be claimed in favor of the jurisdiction of federal courts is that where, by the local law, the foreign corporation is amenable to suit in the courts of the state, service being made upon an agent within the state, the federal courts may be regarded as courts of the state, and may take jurisdiction upon such service as would be good in a state court. At all events, we are unwilling to go further than this. We do not agree to the proposition that the mere fact that a foreign corporation does business within the district brings it within our jurisdiction, in the absence of a local law which authorizes service of the process of the state court upon it. The state and federal courts, upon a question such as this, should be governed by the same rule, to the end that citizens litigating their rights in the two forums shall stand upon an equality.

It becomes necessary, therefore, to consider the legislation of this state upon the subject. There is no statute in Missouri requiring foreign corporations in general, transacting business in this state, to subject themselves to the jurisdiction of its courts. The Revised Statutes of 1855 contained a provision as follows:

"Any corporation, incorporated by any other state or country, and having property in this state, shall be liable to be sued, and the property of the same shall be subject to attachment in the same manner, as individual residents of other states and countries, having property, are now liable to be sued and their property subject to attachment." Rev. St. 1855, c. 34, § 22.

By act approved March 14, 1859, it was provided— "that all railroad companies who own and operate roads terminating opposite to the city of St. Louis, whose chief office or place of business is in St. Louis, shall be sued in the same manner, and no other, that railroad companies chartered by the laws of this state are now sued." Acts 1859, p. 67.

These provisions were embodied in the Revision of 1865, c. 62, § 17. By an act passed in 1877 it was provided as follows:

"All railroad corporations that own or operate roads terminating opposite to any point in this state, and which have offices or places of business in this state, shall be sued in the same manner as railroad corporations chartered by this state." Laws 1877, p. 369.

Similar statutes have from time to time been enacted with reference to foreign insurance companies, but, in general terms, applying to all foreign corporations. Another statute, and the one chiefly relied on by complainant, provides as follows:

* *

"A summons shall be executed, except as otherwise provided by law : *fourth, where defendant is a corporation or joint-stock company, organized under the laws of any other state or country, and having an office or doing business in this state, by delivering a copy of the writ and petition to any officer or agent of such corporation or company in charge of any office or place of business; or, if it have no office or place of business, then to any officer, agent, or employe, in any county where such. service may be obtained."

It has been held by the supreme court of Missouri that under the above-mentioned act of March 14, 1859, foreign railroad companies were not liable to be sued in the courts of this state. without an attachment of property, unless in the case of a company owning a railroad terminating opposite the city of St. Louis, and having its chief office for the transaction of its business in that city. Robb v. Railroad Co. 47 Mo. 540, and cases cited. This was held upon the principle that a statute specifying what particular foreign corporations may be sued in this state necessarily excludes suits against such as are not included within the terms of the law The latter act enlarges the right of suit by extending it to railroad companies having lines of road terminating opposite to any point in this state, and which have an office or place of business in this state, whether it be its chief office or not; but it still applies only to railroad corporations.

It is thus seen that the action in the present case could not be maintained in a state court under the decisions of the supreme court of Missouri, in the absence of the last statute above quoted. The question, then, is, does that statute enlarge the jurisdiction of the courts of the state, and authorize suits in personam therein against foreign corporations, in cases not coming within the laws previously in force? It will be observed that it is a statute regulating the service of summons upon a foreign corporation. The natural construction of such a statute is that it is intended to regulate service of process in such cases as are authorized by law to be

brought-in such cases as come within the jurisdiction of the court; not that it is intended to confer jurisdiction in cases not covered by previous legislation. It is strongly urged by counsel that the act was intended by the legislature to go further, and to authorize suits to be brought against all foreign corporations having offices and agents in this state, and it is said that great inconvenience will result from any other construction. We recognize the fact that it is important that laws should be enacted authorizing suits against corporations wherever they are found doing business; but it must also be conceded that it is the duty of the legislature, and not that of the courts, to make such laws. If the statute of Missouri, as it now stands and being fairly construed, does not authorize such suits to be brought in the courts of the state, we are not disposed to assert the jurisdiction of this court. Although the supreme court of this state has not passed upon the question of the true construction of the act last mentioned, it has received the careful consideration of the St. Louis court of appeals, in the recent case of McNichol v. U. S. Mercantile Reporting Agency, where, in a well-reasoned opinion, it is held that the statute does not authorize suits against all foreign corporations doing business in this state. It is held that the several acts must be construed together; that they are not necessarily in conflict, and that it is the duty of the courts to give full effect to each; and it is said:

"The clause in question is perfectly consistent in terms with section 742. The latter section prescribes in exact terms what right of action shall exist against foreign corporations. The section under consideration goes no further than to prescribe the manner in which process shall be served on such corporations. It says nothing about the effect of such service; that is left subject to the operation of other provisions of the Revised Statutes, and under those provisions it can have no more operation than as a substitute for constructive notice in a proceeding against a nonresident individual."

For the present, and until the question shall be decided by the supreme court of Missouri, we shall adopt and follow this ruling. As, however, the case first cited is now, as we understand, pending on appeal in the supreme court of the state, the complainant may, if he see fit, have this case continued v.7,no.2-10

until that court shall give an authoritative construction to the statute, which will be adopted by us as the rule of decision here. If complainant does not adopt this suggestion the motion to dismiss will be sustained.

ORANGE NAT. BANK v. TRAVER and Wife.

(Circuit Court, D. Oregon. May 16, 1881.)

1. FOREIGN CORPORATION.

The Oregon act, (Or. Laws, 617,) prohibiting a foreign corporation from "transacting business in this state" until it appoints a resident agent therein, was not intended to prevent such corporation from maintaining a suit in the state courts, and it is not in the power of the state to prevent it from maintaining a suit in this court. 2. SAME.

A corporation, formed under "the national banking act," is either a citizen of the United States only, or a citizen of the state where it is organized and located. If the former, it is not a foreign corporation in this state; if the latter, it is a foreign corporation, but for that very reason may sue in the national courts herein, irrespective of the state legislation.

3. SEPARATE PROPERTY OF MARRIED WOMEN.

A debt contracted by a married woman is, in equity, a charge upon her separate estate; but, if contracted as surety for the benefit of another, the authorities are in conflict whether it creates such a charge, unless her intent to have it produce such effect is expressed in the contract; but, in either case, a note given by the wife for the debt of her husband, with a stipulation that the note is taken by the payee "on the credit" of her separate estate, is sufficient evidence of her intention to charge her estate with the payment of such debt.

In Equity. Suit to enforce a charge upon a wife's separate estate. Demurrer to answer.

David Goodsell, for plaintiff.

George H. Durham, for defendant.

DEADY, D. J. On December 21, 1877, the defendants, George W. Traver and Emma S., his wife, made their two joint and several promissory notes at Portland for the sum of $600 each, payable, with interest at the rate of 3 per centum per annum, to Johnson, Clark & Co., or order, at the

First National Bank, Portland,-one in 18 months and the other 24 months after date. Each of the notes contained the following stipulation:

"This obligation is given for the benefit of George W. Traver and Emma S. Traver, and taken on the credit of the separate estate of Emma S. Traver and the property of George W. Traver."

Before maturity the notes passed by indorsement into the hands of the plaintiff, who brought this suit in the state circuit court against the husband and wife to subject certain real property, situated in this city and county, and now, and at the date of said notes, belonging to the latter "as her own statutory separate property," to the payment of the amount due thereon, alleging the insolvency of the husband. The defendants appeared and answered separately, and then caused the suit to be removed to this court. The answer of the wife, among other things, contains the following defence:

That the defendant, at the date of said notes, was the wife of her codefendant, George W. Traver, and signed them "as surety for husband only:" that no part of the consideration thereof was paid to her, or enured to her benefit, or that of her estate; that said notes were given for a pre-existing indebtedness incurred, "in part at least," prior to her marriage with said Traver.

To this defence the plaintiff demurs for insufficiency. Upon the argument of this demurrer, the question was also made and submitted by counsel:

Can the plaintiff maintain this suit without having first complied with sections 8 and 9 of the act of October 24, 1864, (Or. Laws, 617,) concerning foreign corporations "transacting business in this state?"

Upon the argument of a demurrer, the court will, notwithing the insufficiency of the pleading demurred to, give judg ment against the party whose pleading is first defective in substance, (1 Chit. Plead. 707;) and as it does not appear from the bill that the plaintiff has complied with such act, the point may be considered and decided upon this demurrer to the defendant's plea. In support of the negative of this. question counsel cite In re Comstock, 3 Sawy. 218, and Semple v. Bank of B. C. 5 Sawy. 88, in which this court held that a foreign corporation is not authorized to transact business in this state without first appointing a resident agent, upon