been plaintiff, the jurisdiction of the Circuit Court would have attached, notwithstanding his cestuis que trust had been citizens of Vermont. The question depends altogether upon the citizenship of the Bennington & Rutland R. R. Co., it being the actual trustee, and the legal right to sue on behalf of the bond holders being in it. Bonnafee v. Williams, 3 How., 574; Hatch v. Chicago R. Co., 6 Blatchf., 105, and cases cited at p. 112; Coal Co. v. Blatchford, 11 Wall., 172, 20 L. ed. 179; Rice v. Houston, 13 Wall., 66, 20 L. ed. 484. Mr. Justice Davis delivered the opinion of the court: George Briggs, trustees of the said mortgage on the Western Vermont Railroad, to the defendants. The defendants asked the State Court, in a petition addressed to it, to remove the cause on the alleged ground that Knapp and Briggs were mere nominal parties to it, having no interest in the subject-matter of the controversy, which was wholly between the Bennington and Rutland Railroad Company, a Vermont Corporation, and themselves. This petition, with the proper affidavit of local prejudice annexed to it, together with the original writ, declaration and pleas, were transmitted to the Circuit Court. The plaintiffs, upon these papers, the certified copy of the lease, and the affidavits of certain persons that there were outstanding bonds of Both the parties to this record are citizens of the Western Vermont Railroad Company, which New York, and were at the commencement of had been converted into or exchanged for the the suit in the State Court, as was George stock of the Bennington and Rutland Railroad Briggs, joined as plaintiff, who has since de- Company, nor in any other way paid or disceased. The State Court declined in the first in-charged, moved the court to remand the cause stance, on the application of the defendants, to to the State Court for want of jurisdiction. remove the cause to the Circuit Court of the United States for the District of Vermont, but finally did so on learning the decision of the Circuit Court that it was properly removable under the Acts of Congress. After the papers were filed in that court, the plaintiff made a motion to remand the case to the State Court for trial, which motion was refused. Thereupon it was tried in that court and the defendants obtained a verdict in their favor. This writ of error is sued out for the sole purpose of testing the question, whether or not the Circuit Court had the right to try the case. We are confined in consideration of this question to the papers sent up with the order for removal and the papers filed in support of the motion to remand. If any thing occurred on the hearing of this motion, which ought to have been preserved, it has not been done, for there is neither a bill of exceptions nor an agreed case in the record. It is true, the clerk makes a recital, running through nearly three pages of the transcript, of the various matters which, he says, were proved on the hearing of this motion, and of certain stipulations and admissions. These recitals form no part of the record and cannot be considered by us. They are not even authenticated by the signature of the judge, nor could they be, to be made available here, except through the mode of a bill of exceptions. Although this manner of making entries by the clerk is improper and unauthorized, yet the party to the record in whose favor they are made cannot gain by them, or the party against whom they are made be injured by them. If either party, in an action at law, is desirous of preserving the evidence, either at the trial or on a preliminary motion, in order to raise a question of law upon it, he must ask to have it incorporated in a bill of exceptions. This is the only way in which it can be done, unless the 122*] parties choose to make an agreed statement of facts. Neither mode was adopted in this case, and we are, therefore, without the means of knowing what evidence was introduced on either side on the motion to remand. The question of jurisdiction is, therefore, to be decided on the papers properly in the record. The action is for covenant broken, predicated, on the covenants in a lease executed on the 16th day of January, 1857, by Shepherd Knapp and The motion was denied, and the court rested its decision on the ground that Knapp, the surviving plaintiff, was only a nominal party to the suit. But it is difficult to see how a party who makes a contract and is charged with duties and responsibilities in connection with it can be treated, when he sues for the breach of it, otherwise than as the real plaintiff. In a court of law legal rights alone can be recognized, and in determining the point of jurisdiction, we will not make inquiry outside of the case in order to ascertain whether some other person may not have an equitable interest in the cause of action. ers. It is conceded on the argument that Knapp and Briggs were trustees of a mortgage upon the property of the Western Vermont Railroad to secure the bonds of the company, and that upon a strict foreclosure of the mortgage their title became absolute in trust for the bond holdAfter this they leased the road to the defendants for a term of years, and at the expiration of the lease brought their suit upon the covenants of the lease. It would seem that they not only had the right to sue, but that nobody else could sue. It is said, however, that before the expiration of the lease a new corporation, called the Bennington and Rutland Railroad Company, was organized by a majority of the bond holders of the defunct corporation, under the laws of Vermont,. who had converted their bonds into stock, and that the new corporation was, by the provision of the statute under which it was formed, substituted as trustee for the other bond holders in place of the plaintiff in error, and had thus become the real party in this suit. It is not necessary to discuss the question whether the Statute of Vermont can bear the construction claimed for it, for manifestly it is not *in the power of the State Legisla- [*123 ture, without the consent of the cestuis que trust, to substitute a new trustee in place of the persons named in the mortgage. This would impair the obligation of the contract. The salability of railroad bonds depends in no inconsiderable degree upon the character of the persons who are selected to manage the trust. If these persons are of well known integrity and pecuniary ability the bonds are more readily sold than if this were not the case. It is natural. that it should be so, and on this account the trustees usually appointed in this class of mort gages are persons of good reputation in the cities where these bonds are likely to sell. To change them is to change the contract in an important particular, and this cannot be done without the consent of the parties for whose benefit the trust was created. be reversed, with instructions to the Circuit Court to remand the case to the County Court for the County of Bennington, in the State of Vermont, from whence it was improperly removed to the Circuit Court. Mr. Justice Bradley did not sit during the argument, and took no part in this decision. The trustees in this case, so far as the record discloses, have not been discharged from the obligations of their trust or devested of their right of action on this lease by judicial proceeding or otherwise, nor has the trust in fact been closed, for there are bonds outstanding which have THE TIOGA RAILROAD COMPANY, Plff. in never been paid or converted into stock of the new corporation. It can make no difference whether these bonds are few or many. The THE BLOSSBURG & CORNING RAILROAD trust is continued until all are paid, unless in the meantime the trustees are discharged. Err., บ. COMPANY. (See S. C., 20 Wall., 137-152.) Res judicata-state decision, when bindinggeneral finding. 1. Where a point has been decided in a state court, it is res judicata between the parties. It cannot be litigated again on the same contract in a Federal Court. They are the real plaintiffs in any suit brought to enforce a claim accruing to them in the execution of their trust, as much so as executors and administrators are, who also sue for the benefit of others and not themselves. Like them they control the litigation, and are charged with the responsibility of conducting it. The true line of distinction between nominal and real parties to an action is pointed out by this court in the recent case of Coal Co. v. Blatchford, 11 Wall., 172, 20 L. ed. 179. The court, in commenting on the cases of Browne v. Strode, 5 Cranch, 303, and McNutt v. Bland, 2 How., 9, where the plaintiffs of record were treated as nominal parties merely, say, "There is no analogy between those cases and the case at bar (one of trusteeship). The nominal | Argued Mar. 23, 24, 1874. Decided May 4, 1874. 124*] plaintiffs in those cases were not *trus tees, and held nothing for the use or benefit of the real parties in interest. They could not, as is said in McNutt v. Bland, prevent the institution or prosecution of the actions, or exercise any control over them. The justices of the peace in the one case and the Governor in the other were the mere conduits through whom the law afforded a remedy to the parties aggrieved.” The position of Knapp as surviving plaintiff is very different. He is not a mere passive instrument in the litigation. On the contrary, he is active in promoting it, and would be remiss in his duty if he failed in using all proper means to bring it to a successful issue. As the cause of action is vested in him the court looks to his citizenship in determining the question of jurisdiction, and not to the residence of those persons who are beneficially interested in the subject-matter of the litigation. The cases are numerous to this point, and it would be a needless work to cite all of them. Bonnafee v. Williams, 3 How., 574; Davis v. Gray, 16 Wall., 220, 21 L. ed. 453; Coal Co. v. Blatchford, supra. It may be proper to say that the Act of 1867, 14 Stat. at L., 558, on the subject of the removal of cases from the State to the Federal Courts, which extends the provisions of the Act of 1789, 1 Stat. at L., 73, so as to allow either the plaintiff or defendant to remove the cause for the reasons stated, at any time before final judgment, does not change the settled rule that determines who are to be regarded as the plaintiff and the defendant. As the plaintiff and the defendant in this action were both citizens of New York, the circuit court had no jurisdiction to entertain it. It is, therefore, ordered that the judgment 2. Where the courts of a State have decided that a foreign corporation cannot avail itself of the Statute of Limitations of that State, their decision upon the construction of the statute is binding upon this court. 3. Where a referee finds generally in favor of the plaintiff, no error can be assigned upon such a IN ERROR to the Circuit Court of the United States for the Northern District of New York. The action was originally commenced in the Supreme Court of the State of New York, by the present defendant in error against the plaintiff in error, by the service of a summons upon one of its officers or agents at Corning, in the County of Steuben, on the 6th of May, 1864, where the Tioga Company has had an office for the transaction of its business for more than twenty years. was Under the Acts of Congress, the case The case is further stated by the court. error: The Statute of Limitations of the State of New York was a perfect defense against every part of the plaintiff's demand, accruing, at NOTE. Jurisdiction of U. S. Supreme Court to declare state law void, as in conflict with State Constitution; to revise decrees of state courts as to construction of state laws. Power of States to construe their own statutes-see notes, 7 L. ed. U. S. 679; 62 L. R. A. 542; 63 L. R. A. 575. It is for state courts to construe their own statutes. Supreme Court will not review their decisions except when specially authorized to by statute-see note, 12 L. ed. U. S. 169. any time six years before the commencement | of this suit, on the 6th of May, 1864; that is, as to all of the claim of the plaintiff which be came due on or prior to the first day of May, 1858. 1. It was proved and conceded that, during all the time of the existence of the contract of 1851, the defendant had property within the State of New York, an office at Corning, N. Y., directors, officers and agents, constantly within this State and at all times amenable to the process of its courts and, in fact, in 1855, the plaintiff availed himself of this condition of things by bringing a suit against the defendant for a portion of the demand claimed under the contract now in controversy; recovered judgment and collected the same; and that in fact this suit was commenced by personal service of a summons upon the defendant's agents at Corning. It is, therefore, apparent that the Tioga Company has been, at all times, subject to a suit at law, for any debt it owed to the Blossburg Company, or any other party, and yet it is said that the Statute of Limitations is no defense. 2. The question arises under sections 73, 74, 89, 91 and 100 of the Code of Procedure of New York, enacted in 1848. 3. In respect to corporations existing under the laws of New York, no question would be made but that a large, and much the largest, amount of the recovery below, would have been absolutely barred by the Statute of Limitations. But it is urged that the Tioga Company, being a foreign Corporation, that is, one existing under the laws of the State of Pennsylvania, is not in this respect within the protection of the New York Statute of Limitations. In 1848 (Code of Procedure, sec. 113), in respect to the commencement of suits by the personal service of a summons, by the delivery of a copy, it was enacted by the Legislature of New York as follows: 1. If the suit be against the corporation, to the president (that is, delivery of the copy) or other head of the corporation, secretary, cashier or managing agent thereof. (It is to be observed that this provision, in terms, apparently applied to all corporations, both domestic and foreign). In 1851 (N. Y. Code of Procedure, sec. 134) the subdivision above quoted was amended as follows: 1. If the suit be against the corporation (delivery of copy of summons) to the president or other head of the corporation, secretary, cashier, treasurer, the director or managing agent thereof; but such services can be made in respect to a foreign corporation, only where it has property within this State, or the cause of action arose therein. In 1859 the subdivision of the section of the Code before referred to, was amended by adding at the end of the words: "Or where such services shall be made within this State personally upon the president, treasurer or secretary thereof." It is thus entirely 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. The exceptions contained in section 100 do not cover the case of a foreign corporation, its terms relating to natural persons alone. Faulkner v. Delaware and Raritan Canal Co. 1 Den. 441. The decision in Olcott v. Tioga R. Co. 20 N. Y. 210, is not of controlling authority in the courts of the United States. It is only a series of decisions which attain that force. McCutchen v. Marshall, 8 Pet., 220; Harpending v. Dutch Church, 16 Pet., 455; Green v. Lessee of Neal, 6 Pet., 291; Gelpcke v. Dubuque, 1 Wall., 175, 17 L. ed., 520. A Statute of Limitation can scarcely be regarded as a purely local statute, in the same sense in which the courts of the United States are bound to follow the interpretation given by the courts of any State. Ang. Lim., secs. 21-24. Within the intent and meaning of the statute, the Tioga Co., for six years prior to the commencement of this action has been within the State of New York, and amenable to the process of its courts. Code, secs. 99, 134; Silver Lake Bank v. North, 4 Johns. Ch., 370; Cary v. C. & T. R. Co., 29 Barb., 35; Merrick v. Van Santvoord, 34 N. Y., 213; Olcott v. Tioga R. R. Co., 20 N. Y., 215; Hill, arguendo; Davis v. Carr, 6 N. Y., 135; Power v. Hathaway, 43 Barb., 217. The result of the case of Olcott v. Tioga R. Co., if to be followed, is not controlling in the case at bar, or upon the questions now involved. The distinction between the cases is obvious. In the Olcott case, it was substantially held that the Statute of Limitations was no defense, for the defendant was never within the State, nor in condition to be sued in the courts of New York, and it was, in effect, conceded by the counsel for the plaintiff in that case (Mr. Hill) and by the court also, that if the defendant had been at any time subject to the process of the courts of New York, at such moments the Statute of Limitations began to operate upon the demand. And it was claimed in the very first point of the plaintiff's counsel, that the suit, in that case, was brought as soon as process could be served. See, Mr. Hill's point, I., 20 N. Y., 210. In the case at bar, the Tioga Company was amenable to process at all times during the existence of the contract in controversy, and the Blossburg Company has, upon several OCcasions, availed itself of this condition of things, by commencing suits against it, in the courts of New York. The case of Olcott v. The Tioga R. Co. did not show that at any time the defendant therein. had been amenable to the process of the courts of New York, until the summons in that suit was in fact served, and the case was determined upon the ground that the defendant, until that time, had not been amenable to the process of the courts of the State of New York. This was the position of the plaintiff's distinguished counsel in that case, as may be seen in his fourth point (20 N. Y., 215, I). Alluding to foreign corporations, he admits that such corporations, although they cannot change their 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. 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 approved 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 demand 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, 17 L. ed., 130; Merrick v. Van Santvoord, 34 N. Y. 208; Stevens v. Phænix 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. Service upon an agent or officer of the Tioga Company in this State, or any proceeding of the laws of New York against a foreign corporation, where the defendant did not appear in the action, would be only a proceeding in rem and entirely ineffectual as a means of obtaining a personal judgment against such defendant. Hulbert v. Hope Mut. Ins. Co., 4 How. Pr., 275; Brewster v. Michigan Cent. 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 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. 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. 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. 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 ineffectual 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. Co. v. Tioga 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. 1 Stat. at L., 92, sec. 34; Ang. Lim., sec. 24, and cases cited in note; Lorman v. Clarke, 2 McLean (C. C.), 572; Shelby v. Guy, 11 Wheat., 361; Harpending v. Dutch Church, 16 Pet., 463; McCluny v. Silliman, 3 Pet., 270; U. S. v. Morrison, 4 Pet., 127; see, also, the long array of cases cited in note A to the Judiciary Act of 1799, 1 Stat. at L., p. 92. 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, 17 L. ed., 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 no attention to the limitations of other States, and have allowed suits from contracts to be prosecuted or defended only as the same were affected by their own Statute of Limitations. Nash v. Tupper, 1 Cai., 402; Ruggles v. Keeler, 3 Johns., 263; Lincoln v. Battelle, 6 Wend., 475; Carpenter v. Wells, 21 Barb., 593; Toulandou v. Lackenmeyer, 6 Abb. Pr. (N. S.), 215; Power v. Hathaway, 43 Barb., 214; Story, Confl. L., sec. 577. Mr. Justice Bradley delivered the opinion of the court: The Tioga Railroad Company is a Corporation duly organized under the laws of Pennsylvania, and is the proprietor of a railroad extending from Blossburg, in that State, to the line between Pennsylvania and New York. The Blossburg and Corning Railroad Company is a Corporation organized under the laws of the State of New York, and is the proprietor of a railroad connecting with the above mentioned road at the state line, and extending thence to Corning; the two roads forming a complete line of railroad from Blossburg to Corning. The latter Company acquired its part of the road by purchase in 1855, succeeding to the rights of a former company called the Corning and Blossburg Railroad Company. By contract made in 1851, the Corning or New York end of the line was leased to the Tioga Railroad Company, under certain terms and stipulations, amongst which was the following: "For the use of the said railroad of the said Corning and Blossburg Railroad Company, and the use of their depots, engine-houses, machine-shops, grounds, water-stations, etc. The Tioga Railroad Company agrees to pay to the Corning and Blossburg Railroad Company two thirds of the receipts for passengers, mails and freights which shall be taken for the said Corning and Blossburg Railroad, the expenses charged customers for the loading and unloading coal, lumber and other freights, and for the warehousing, and such additional charges by way of discrimination as shall be made for short distances for motive power not to be included in the term 'receipts,' as above mentioned." to which court the case was carried. This point, then, is res judicata between the parties; it cannot be litigated again on the same contract. Beloit v. Morgan, 7 Wall., 622, 19 L. ed., 206; Aurora City v. West, 7 Wall., 94, 19 L. ed., 46; Freem. Judg., sec. 256. The present suit is brought for the same class of receipts which have accrued since the commencement of the former action. Besides the defense above mentioned, the Tioga Company in this case pleaded the Statute of Limitations, as to all receipts which accrued more than six years before the commencement of the suit The plaintiff replied that the defendant was a Corporation organized under the laws of Pennsylvania, and not created or existing under the laws of the State of New York, and that when the supposed cause of action accrued in favor of the plaintiff, the defendant, the Tioga Company, was out of the State of New York and so remained until this action was commenced. The defendant denied that at or since the commencement of the action it had been out of the State. The significance of these pleadings is derived from the New York Statute of Limitations. The period limited for bringing an action of this kind is six years, but by the 100th section of the Code of Practice it is enacted as follows: "Sec. 100. If, when the cause of action shall accrue against any person, he shall be out of the State, such action may be commenced within the terms herein respectively limited, after the return of such person into this State; and if after such cause of action shall have accrued, such person shall depart from and reside out of this State, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action." The defendant in error insists that, as the Tioga Company is a Pennsylvania Corporation, it can have no legal residence or existence in any other State than Pennsylvania, and hence it was not in the State of New York when the action accrued, and has not been therein at any time since; and, therefore, cannot claim the benefit of the Statute of Limitations. This the plaintiff in error disputes; and its counsel relies on those sections of the Code of Practice which show that foreign corporations may be sued in New York under certain circumstances, as where they have property in the State, or their officers, agents or directors are found within the State and are served with process. Thus by Act of 1851, sec. 134 of the Code, after providing for service of process on the Corporation by delivering a copy to the president, treasurer, secretary, director or managing agent, it is said: "Such service can be made in respect to a foreign corporation only where it has property within this State or the cause of action arose therein;" or (by the Act of 1859) "where such service shall be made within this State personally, upon the president, treasurer or secretary thereof." The parties soon disagreed as to the meaning of the words "such additional charges by way of discrimination as shall be made for short distances for motive power, not to be included in the term 'receipts,' as above mentioned." The lessees claimed that they were entitled to keep any excess of way fares and freights for intermediate places and short distances above the through rates for those places, and did not account for, but retained the same. It is for this difference, running through many years, that the suit is brought. In January, 1855, the Blossburg Company brought a suit in the Supreme Court of New York against the Tioga Company, on the contract in question, in which this question of difference was litigated and decided in favor of the former Company. Now, counsel for the plaintiff in error (the Some attempt has been made to show that this defendant below) insists "that it was proved question was not decided in that suit; but we and conceded that during all the time of the have looked at the record and proceedings existence of the contract of 1851, the defendant therein, which were in evidence in this case, and had property within the State of New York, an are satisfied that it was decided. The report office at Corning, N. Y., directors, officers and of the case in 1 Keyes, 486, shows that it was agents constantly within this State, and at all the only question before the Court of Appeals, | times amenable to the process of its courts; |