1876. January

the tenancy, upon goods on the leased premises which Term. belong to a person liable for rent, and where there is an existing liability for rent in arrear, or to become due

City of at the time the lien is created.

Richm❜nd, for &c.

V.

Now in the case before us, the contract of lease beDuesberry tween the landlords (Drewry & Price) and their tenant & als. Cobb, was for one year from January 1st, to December 31st, 1871. In March, Mosely with the assent of the landlords, took Cobb's lease. I say with the assent of the landlords, because they made no objection to it, and collected the rents from him, acknowledging him as their tenant. This lease expired on the 31st December, 1871; but Mosely held over for the year 1872 until March, there being no new contract between the parties. In March 1872, Pratt, without objection on the part of the landlords, took the Arlington house and furniture from Mosely; and the landlords collected rent from him till July or August. In the latter part of the year 1872, Pratt failed to pay the rent, and then the distress warrant was issued and levied.

Now Cobb having leased for one year, and Mosely, who took his lease, having held over after the expiration of the lease without any further contract, the tenancy must be regarded as a tenancy from year to year. Archbold on Land. and Tenant, 65-'6 and 68 (marg.); Sherwood v. Phillips, 13 Wend. R. 479, and cases cited in the opinion of the court.

It follows, therefore, that the lease of Cobb of which Mosely was the assignee terminated on the 1st day of January 1872. On that day a new term commenced. The rent for the whole year 1871 had been paid. The deed of trust to Call was executed and recorded on the 10th March 1871. At the commencement of the new tenancy, to wit, on the 1st January 1872, not a dollar of rent was due, nor was any due in arrear until

1876.

January

Term.

Richm❜nd,

for &c.

the latter part of 1872. The lien on the furniture was therefore created before the commencement of the tenancy. That furniture was on the leased premises, subject to a lien created before the tenancy for the City of year 1872 commenced, and not after-and in contemplation of the statute, construing both sections to- Duesberry gether, must be held subject to the same conditions as if when carried on the leased premises it was subject to a lien valid against the creditors of Mosely.

The liability for the rent in this case came long after the lien was created; and the tenancy during which the lien was created had expired and every dollar due under that lease had been paid. A new tenancy had commenced with an existing lien upon the furniture created and recorded long before it began.

I am therefore of opinion, that the deed of trust to secure Manfred Call must take precedence to the landlord's lien, and that the judgment of the Circuit court should be reversed.

STAPLES, J., dissented.

JUDGMENT Reversed.

V.

& als.

1876. January Term.

Bichmond.

CONTINENTAL INS. Co. v. KASEY.

February 17.

I. In an action upon a policy of insurance by a citizen of the state of Virginia against a foreign insurance company doing business in this state, the foreign corporation is quoad hoc domiciled in the state by virtue of the statutes authorizing the company to do business here, and is not entitled under the act of congress of 1867 to have the cause removed to the United States court on the ground that the corporation is a resident of another state.

2. After a trial of an action at law, and a new trial directed by the appellate court, a party is not entitled under the act of congress of 1867, to have the cause removed to the United States court upon the ground that he is a non-resident of the state.

3. If a party in an action at law would have the cause removed from the state court to the United States court, on the ground that he is a nonresident of the state, he must present his application for it before there has been a trial of the cause.

This case was argued at the term of this court held at Wytheville in 1875, and was decided at this term of the court in Richmond. It was an action at law in the Circuit court of the county of Roanoke, brought by Thomas A. Kasey against the Continental Insurance Company, a corporation chartered by the state of New York, upon a policy of insurance issued by the defendant in favor of the plaintiff. The case was once before in this court, upon an appeal by the company, and the judgment of the court below was reversed, and the cause sent back to the Circuit court for a new trial. See 25 Grattan, 268.

Term.

Ins. Co.

The cause came on again to be tried at the Novem- 1876. ber term 1874 of the Circuit court, when the defend- January ant presented his petition, accompanied with his affidavit, asking that the cause might be removed to Con'nental the circuit court of the United States for that judicial district; but the court overruled the motion; and the defendant excepted. The petition and affidavit are set out in the opinion of Judge Christian.

On the trial there was a verdict and judgment in favor of the plaintiff for $4,950.50, with interest at six per cent. per annum from the 26th of June 1872 till paid; and a motion for a new trial, which was overruled. And the record states that the defendant excepted; but the bill of exception is not in the record. Upon the application of the company, this court allowed a supersedeas to the judgment.

Griffin, for the appellant.

J. F. Johnson, for the appellee.

CHRISTIAN, J. The record in this case presents for our consideration a single question; and that is whether, under the acts of congress relating to the removal of causes from state courts to the circuit courts of the United States, the appellant had the right to remove its case from the circuit court of Roanoke to the circuit court of the United States, in the judicial district in which the county of Roanoke was situate.

The appellant, the Continental Insurance Company of the city of New York, having its home office in said city of New York, but doing business in the state of Virginia, under the conditions and requirements of the statute law of this state, was defendant in a certain action at law, brought by Thomas A. Kasey, upon an VOL. XXVII-28

V.

Kasey.

1876. insurance policy issued by said company, insuring January Term. against fire a certain building belonging to said Kasey. Kasey, at the April term of the circuit court of Con'nental Roanoke 1873, recovered a judgment against said comV. pany. To that judgment a writ of error was awarded by one of the judges of this court.

Ins. Co.

Kasey.

Upon this writ of error the case was heard at Wytheville in July 1874, and this court reversed the judgment of the circuit court, and remanded the case for a new trial to be had in said circuit court of Roanoke. This reversal was in favor of the Continental Insurance Company. But when the case came on again to be heard in the Circuit court of Roanoke, upon the new trial awarded by this court, the company by its counsel filed the following petition.

To the honorable the judge of the circuit court of Roanoke county:

The petition of the Continental Insurance Company of the city of New York, respectfully represents, that it is a foreign corporation, created and having its place of business in the state of New York, and in legal contemplation is a citizen of that state; that it is sued in your honor's court by one Thomas A. Kasey, a citizen of the state of Virginia, upon a contract of insurance; that the matter in dispute in said suit exceeds the sum of five hundred dollars, exclusive of costs, and that there has not been a final trial of said cause. Your petitioner is advised, that under the laws of congress, in such cases made and provided, it has the right to have said cause removed into the circuit court of the United States for this judicial district; and it hereby offers good and sufficient surety for its entering copies of the papers in that court on or before the first day