EDMANSON V. BEST.

531

I cannot but hold that ruling to be decisive here. The court, in effect, construes the word "inhabitant" to be, within the meaning of the act, synonymous with "resident." In the light of previ()/\ls legislation upon the subject of the original jurisdiction of the fed- · eral courts, and of the connection in which the word is used, I think the word is here employed in the sense of "resident." It comprehends locality of existence; the dwelling place where one maintains his fixed and legal settlement; not the casual and temporary abiding place required by the necessities of present surrounding circumstances. A mere "sojou1"l1er" is not an "inhabitant" in the sense of the act. The meaning, I think, is well expressed by Judge Deady in Holmes v. Railway Co., 5 Fed. Rep. 523: "An inhabitant of a place is one who ordinarily is personally present there; not merely in Itinere, but as a resident and dweller therein." The case of U. S. v. Southern Pac. R. 00., 49 Fed. Rep. 297, decided by Mr. Justice Harlan, is pressed upon my attention. The question there considered was with respect to the domicile of a corporation created by one state and operating and maintaining offices in another. It was held that, although a corporation was a legal habitant in the state of its creation, it could also become an inhabitant of another state for. the purposes of business and of jurisdiction in personam. This proceeded upon the grounu that the corporation carried on business in the other state by express license of that state, and upon the implied condition that it was subject to the process of courts within that jurisdiction. Whether or not that decision can be upheld I need not here inquire. Mr. Justice Harlan's ruling certainly appeals to one's sense of justice, and of what ought to be, if it is not. The decision rests upon peculiar ground, not applicable to natural persons. It is further to be observed that that case was decided prior to the decision in Shaw v. Mining Co., supra, and that Mr. Justice Harlan dissented from the opinion of the court in the latter case. Upon the face of the bill the defendant is a citizen and resident of Kentucky. He cannot also be, within the meaning of the term as employed in the act, an inhabitant of Illinois. He is a "sojourner" in the city of Chicago during the time of the Exposition. That does not, however, subject him to this suit in this jurisdiction, if he chooses to avail himself of his privilege of exemption. The motion to dismiss will be granted.

EDMANSON v. BEST.

(Circuit Court of Appeals, Seventh Circuit. October 2, 1893.)
No. 40. 1.

JUDGMENT-REEl JUDICATA

A judgment at law rendered upon an account stated is conclusive of the fairness of the account, since fraud in obtaining it could have been set up as a defense.

532
2.

FEDERAL

vol. 57.

SAME-COLLATERAL ATTACX-INJl'TNCTldN.'

It would be no gr()nnd.for enjoining of a judgment that the court refused to allow the defendant to shQW that the instrument; sued on was by fraud, since Such ruling would be mere error, which would not affect the judgment on collateral attack.
A bill to restrain the collection of a judgment at law will not be treated as a petition for a new trial where the bill is not framed on that theory, and shj>ws no ground for a new trial w!;J.ich complainant could not have presented as a defense to the action.

8.

EQUITY-'-PRACTICE-NEW TRIAl, AT

Appeal from the Circuit Oourt of the United States for the North· ern District of TIlinoi!;\. Bill by. George Edmanson against John L. to restrain the collection of a judgment. Decree for defendant. Complainant appeals. Affirmed. · Marcus 'davanagh and AII:anO. Storey, (Gibbons, Oavanagh & O'Donnell, 'on the brief,) for appellant. NelsonM:onroe, (Jesse A. Baldwin, on the brief,) for appellee. and JEJNKINS, OlrcuitJudges, and BAKER. District Judge. .. WOOpS,Circuit Judge.' The billbi' this case was dismissed for want of eqUity. Its object was to restrain the collection of a judg· ment .;U,t l;tw; rendered in the cqurt below, to cancel for fraud an agreemelit bf settlement, upon which the judgment was based, and to obtain an accounting. The averments, in substance, are: That the complainant, Edmanson, had been engaged in buying and selling oysters in Ohicago, at wholesale and retail, and had had the respondent, Best, 'in his employ a,s bookkeeper, cashier, and manager, in genernlcontrol, entitled to receive in compensation forlhis services a stipulated sum per week and a percentage of the net profits of the business; that on July 9th, 1888, by means of false statements in respect to the amount of l'lncollectible claims, representing them as amounting to not more than $300, when in fact they amounted to $3,OM or lII,ore, the respondent procured the complainant to execute an agreement Which, omitting date and signatures, is of the following'tellOr: .
"It is hereby agreed between Geo. Eldmanson and John L. Best that the following settlement is to day made, viz.: That John L. Best's balance to his credit and due him on July 1, 1888, is five thousand eight hnndred and forty-eight dollars and seventy-nine cents, ($5,848.79,) and is correct, and is so considered by both parties to this agreement; any difference arising from fOI"lller agreements is fully settled by tlus; and in consideration that Goo. Edmanson allows John L. Best percentage of profits, in addition to salary as agreed upon, to stand as credited. on Geo. Edmanson's books, and will not charge back to John L. Best his percentage of loss as shown by balance sheet from Januaryfl, 1888, to April 21, 1888, and that George Eldmanson also hereby agrees not to charge back: any percentage of bad debts to John L. Best. In conf;)ideration of which John L. Best agrees to waive his right to back salary, interest on money to his credit from time to time, and also to make no claim. on Eldmanson for koop of George Edmanson's horses and cows, kept private use, the e;xpellije. of which was charged UI' to barn account, ana affected the profits of the business to the extent of saill. expense;"

EDMANSON V. BEST.

533

That, instead of the sum stated in this agreement, there was in fact due the respondent, if anything, a' very small sum; that in April, 1889, the respondent brought a suit at law against the complainant,in the court below, upon a dedaration containing the common counts only, including an account stated, to which the complainant pleaded the general issue; that at the trial the only evidence adduced in behalf of the plaintiff was the agreement af()resaid; that the complainant offered evidence to show the true relations between the parties, and that the contract of settlement had been obtained by fraud, as charged, but tlhat the- court declared the defense inadmissible in the case at law, and available only in a court of equity, and on February 5, 1890, gave judgment against complainant for $3,933.39, and for costs of suit, the amount of the recovery being made less, by reason of certain credits, than the sum stated in the agreement. The answer sets up two defenses: I!lrst, the contract of settlement, which, it is alleged, was f1airly made; and, second, the judgment at law, by which, it is claimed, the matter now sought to be disputed was adjudicated,-it being alleged that the evidence offered 1:>Y the parties was substantially the same as that adduced before the ,master in this case, that it was received and considered by the court, and judgment given as stated. The complainant replied in the usual form, and there was a reference to the master to take the evidence and report upon the issues. In his report the master, though he saJ-S he in no manner endeavO'red to enter into a full 'acconnting between the parties, in fact made up a statement of account between them by which it appeared that the amount named in the settlement agreement as due the respondent was too large by $2,001.22; bUt, treating that as a partial want of consideration for the agreement, he reported that "the proof, neither in this case nor in the case at law, made out the defense of fraud or circumvention;" that the same evidence, substantially, was adduced in the law case upon the question whether the settlement was procured by fraud, as has been offered in this case; and that, in the opinion of the master, the judgment at law is conclusive upon that question. Though it was competent and necessary for the master to inquire into the accounts and books of Edmanson in order to determine whether or not the contract of settlement was procured by means of false representations in respect to those books and accounts, it was no part of his duty to state an account between the parties, and especially an incomplete one, which ignored the basis upon which the contract of settlement by its terms appeared to have been made; and the court committed no error in sustaining an exception to that part of the report. It is not now an open question whether the settlement between these parties was fair, or was brought about by flalse and deceit· ful means. We agree with the court below that the question was lawfully tried and determined in the case at law and is not open .to reconsideration by a court of equity. Though the declaration in

034

FEDERAL. REPORTER,

vol. 57.

the.sult,.O;1i;law ·mftde nomen11iOn· ol :the contract· of settlement, it for the plaintiff. 'in, .the action to introduce it, as he did, in:proofod'.·his (Chit. PI. 341; Packet Co. v. SickleS, 24 How. 342; Wilson v. King, 83 TIL 236;) and the instrument not being under @eal,and, under the lllinois pl"etCtice, even though it had been undetseal, the defendant had the right to show in defense, as do, that it was. obtained by fraud or was without (Green!. Ev. § 135; Wilson v. King,supra.) The issue having been made and tried in that way, the judgment rendered becamecollclusive until set aside by the court which rendered it or by an' appellate' court. It is· not material that the defense was of such 'anamre 1Jhat, if the question 'were open, there might be ground for a limit in equity. It was a proper defense to the action at law, and,having been interposed and determined, the judgment is conclusive proof that the. fraud attempted to be proved was not committed. ; While the relief obtainable in equity; if the fraud were proven, woUld be broader than the mere establishment of a defense in the action at law, the law court was quite as competent as a equity ,to try the question of fact; and, it having been so determinedthllt there was no fraud, the question of the extent of'relief obtainable in another court if the fraud were provable is immaterial. If it were true, as asserted, that the court held that the defense colildnot be made at law, that was an error upon which 1Jhe complainant should have asked a new trial, and, if necessary, shoUld have taRen a writ of error. The record, however, shows no such decisiQn, and the proofs and the master's report are to the' contrary. .It is further insisted that the bill should be treated as a petition for a new trial,.filed within time, under section 987, Rev. St. U. S. 'l1J.e bill manifestly was not framed upon that theory, and is defective because it shows no ground for a new trial which was not available, or. ",hich the complainant was prevented by fraud or accident from presenting, as a defense in the case at law. Story, Eq. JUl'. §§ 887, i514, and ll()tes.. The decree below should be affirmed, and it is so ordered.

OOLE v. OIL-WELL SUPPLY 00. (Circuit Court, S. D. New York. September 6, 1893.) 1.
OF STATE COURT. CORPORATION-PROPERTY ATTACHED UNDER PROCESS

If the property of an inilolvent foreign corporation has been seized by the sherifi' under a warrant of attacl:unent issued by a state court in an action :which been prosecuted to judgment, and exelevy made upon the property seized, a receiver appointed ClItion subsequent to. the attachment by the United. States circuit court of the district in which such property is situated takes the property of the corporation in the jurisdiction subject to such rights over the same as had been acquired by. the prior pr0ceedi;ngs in· the state court.