RDERAL

vol. 4&·

said courts;.andtbat'in ,tbis case service bas been made in tbe mode so prescribed. These are:.the essentials of jurisdiction, and all that is necessary to hring the case and the defendant fully within the jurisdiction of court. U. S. v. Telephone 00.,29 Fed. 35. Thepl(3aS are all bad, and will be overruled.

Omo & M. RY. CO,'V.PRESS PuB. Co.

(CW<mUCou1't, 8. D. Ne'IlJ :york. November 17,189L)

L "

&.

'I["Bnguage which chargel a railroad company with such incapacity or negleot In tbllCC)Dquct of itl! bUl!inll811 that belief in, ita ,truth would prevent persons from em· it as a is actioD,able ,without proof of special damage. .Wberethe.complaiDt in an action by a railroad company for libel alleges that depubll,shed the (aliJestatement that more thaD !laIr the ties in plaiPtifr'stoad were rotlleD, and thatitwas dangerous to TUn traiilafast.thereoD, a ,demurrer thereto ianin( to state a cause'of action is frivolous. '
·

IS AOT;ONABLB-RAILROAD COMPANIIIS-NIIGLIGIINCB.

as

At Law. On motion for judgment on,demurrer. ActioQ ,bYi tbeOhio'&MississippiRailway Company against the Press Publishing Company for libel. Defendant demurred to the complaint, on tbJ:J:-ground that "it appears on the face of the complaint that the said: 0000 pIaillt does not state facts sufficient to constitute a cause of acI fPlaintiff moved for judl/;menton the demurrer as frivolous. B1Ilm/\Stillman de JI,ubbard; for plaintiff. Inwrep, Stoli6 de Auerbach; for defendant.
!. '.,

L,\.<x)j'fBl$,Qircuit Judge. The demurrant has wholly. mi.'ltaken the cause of"action set forth in the complajpt. Defendant's publication is not decl'il'¢.upon asa"Jibel on. a thing. 11 A corporation, though an artificial may mainta,in an action for Ii bel i certainly for conceruhlg it in tbe traqe or occupatiqn;which it carries on. In8twonce a,. v.· PfJf'1jrK, 23 N.· J· L!1 tv, 402; Mutuq.l Re8erve Fund ltijeA88'n v. Spectator QO,N. y. Super,.Ct, 460; OmnW'lMl:Co. v. Hawkin8,4 Hurl. & N. 87, 146; Qank v. 'l'hompson, 18 Abb. Pro 418. It iselementar,r law that .every from which peouniarybenefit may be derived creates special suaceptibility to injury by language charging unfitpessorimproper conduct of such oPCupation that.snch language is actionable, O,fspeqisl , .rhe avers that ,plaIntiff is ,*' J:silway c,orpotation, duly organized and existing under the laws of the states of Ohio, Indiana, and Illinoil1, cammon :qi.rrier of go()dg' :Rnd passengers, and that it ;a4d ,liIieSQf rQil:road. The occupation of the therefore, is the proper,safft. a.nd business-like maintenance and operE+tionof its ;raiIroad, tba't: i$,! ita

UNITED STAfrES, t1. ROUSTON.

'207

dutierr as, such common carrier of goOds and passengers. ,Language which charges the plaintiff with such incapacity or neglect in the conduct of its business that belief in the truth of the charges would, asa natural and pro1timate consequence, induce shippers of goods and passengers to refrain from employing the plaintiff as such common carrier, is actionable without proof :of special damage. The particular language complained of here is ,the statemen:t in defendant's newspaper that" over one-hllif of the ties in the road-bed [of the plaintiff] are rotten, and it is dangerous to run trains very fast." Such a publication is manifestly within the principle above laid down; and, as the complaint further avers that the statement was "false, * * * malicious, and made for the purpose of injuring the credit and business of the plaintiff'," a cause of action is set fortbtin the complaint. Motion {Qrjudgment on the demurrer as frivolous is granted.

,:

UNITED STATES fl. HOUSTON et

Ql.

,(I>Imict Court, D,Ka118a8, B'imDfilliBion: November IS, 180,1.)
L

, QeD.;

whereintq9 right: survives against hill,personal representatives, reVivor shall be had 1,'gainstthem; and Ilectlon 4536 provides that, if ,& liefendant die,S afterjudgment and before satillfaction thereof; his personal representatives may be' made i,n "ame is presoribed for reViving ac,,tions before jUd,amant. I:J;eld, that unller these sllction!!. where one of several joint defendants has died after' judgment, the judgment may be revived against his personal representative without other for section 1101 providtl$ that in alloasea Of joint suit U!ay be brought agaiul!t any oue(lf more of tholle '
'9., LDollTAT10N

at.

§ 4528; declares that on the death of a defendant pendinjf an action

Op'PAB'PY":"RmoB-JoINTDIIIl'BND4+n'B.

Where the United States :fiallrecovered againlltseveraldefendltuts, its right to revive the judgDlent against the of one of, them, sinee is not affected by Gen. St. Kan. S 2890, providiug that actions against execuoo.rsand administrators shall be commenced within :three years :from the time 'of notice of appointment lIond, and that otherwise the claim shall be forever barrod,

AOTIONS-Tllil\lPUs NON OOmJRRIT REGI.

, ,

,

AtL8.w. ' bythe'Unite!latates against Mrs. J. F. Streeter, as executri:jt of James Streeter, deceased. J. W· .tidy, U. S. Dist. Atty. J. W. McClure. for defendant. This is Ii proceeding to revives. judgment against Ml'B. of James Streeter, deceased. It appears from the pe.tition that on the 13th day of October, 1880, the United States, to its own use,reeovered judgment in thiEI court on the bond of Samuel D. Houston, James Streeter, and Sam,uelM. Strickler. Since therenio thei6th day of July"1886, said 'Ja.mes state of Kansas, and his will was admitted to probate on the 29th "pfl.y of J uly, The defendant, Mrs., J,!:F. Streeter, was made the,6Xecutrix of. said estate. ,She is a

J. F. Streeter,

PHILIPS,

J.