Dissenting Opinion: Brown, J.

chase price as aforesaid, said three vendors paid whatever liabilities they had outstanding except their liability to your orator herein set forth, and distributed the money and stock obtained from your orator as the proceeds of said sale and all their other assets amongst their respective shareholders, and the same were received by said shareholders, and since that time said three corporations have not nor has either of them made any use whatever of their franchises, but they have abandoned the same, and neither of said corporations has any officer or agent upon whom process can be served, and they have not nor has either of them any assets of any kind out of which any judgment at common law against them or either of them could be satisfied." Now, if there be no officer or agent of a corporation upon whom process can be served, it follows that there can be no office or other place of business of such corporation within the meaning of section 2431, since the only object of an office or place of business is for the accommodation of an officer or agent. The act does not authorize service upon a trustee, but only upon the president of the board of trustees who would, of course, be an officer of the corporation. The allegations of the bill in these particulars may be shown to be untrue, but upon demurrer they must be taken as true.

. It is true that by section 2435 "service by publication may be had .. in actions against a corporation incorporated under the laws of this Territory, which has failed to elect officers, or to appoint an agent, upon whom service of summons can be made, and which has no place of doing

business in this Territory."

But, while such service by publication might be effective so far as to charge any property of the corporation within the Territory, it would not create a general liability against the corporation which would be available elsewhere. This court has repeatedly held that a personal judgment is without any validity if it be rendered against a party served only by publication of a summons, but upon whom no personal service of process within the State was made, and who did not appear. Pennoyer v. Neff, 95 U. S. 714; Harkness v. Hyde, 98 U. S. 476; St. Clair v. Cox, 106 U. S. 350.

Syllabus.

The cases relied upon to sustain this decree do not touch this question, and the authorities which require corporations to be made parties to a bill against the stockholders, have no application to cases in which it is not only useless but impossible to make them parties. I do not think the defendants in this case, who are charged with receiving the proceeds of a gross fraud, should be permitted to take refuge in the shadow of these defunct corporations.

MR. JUSTICE GRAY was not present at the argument, and took no part in the decision of this case.

CASEMENT v. BROWN.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF OHIO.

No. 173. Submitted March 24, 1893. - Decided April 10, 1893.

A contractor agreed with a railroad company to construct piers for a bridge over the Ohio River of sizes and forms, in places, and of materials, in accordance with plans and specifications furnished by the company, and . to furnish the materials and perform the work of preparing and keeping in place, buoys and lights to warn against danger. By reason of a flood one of these piers was submerged, and the buoy and light placed to give warning of it were carried away. The contractors failed to place a new buoy and light. One of the barges in a tow struck on the pier and was lost. In an action against the contractor to recover damages therefor, Held,

(1) That the defendants were independent contractors, and not employés of the company; and as such were liable for injuries caused by their own negligence;

(2) That having omitted to replace the buoy, although they knew of the necessity therefor and had ample time to do so, or otherwise to warn of the danger, they were guilty of negligence, and responsible for injuries resulting therefrom;

(3) That there was no contributory negligence on the part of those navigating the vessel destroyed; as it would be placing too severe a condemnation on the conduct of the pilots in charge to hold that an error of judgment, a dependence upon the appearance of the stream and a reliance upon the duty of the contractors to place suitable buoys and other warnings, were such contributory negligence as would relieve the contractors from liability.

Statement of the Case.

THIS was an action to recover the value of three barges of coal, lost, as claimed, through the negligence of the defendants. The case was commenced in the Court of Common Pleas of Scioto County, Ohio, and removed to the Circuit Court of the United States for the Southern District of Ohio. There it was tried by the court without a jury; findings of fact were made, and from those findings the conclusion was reached that the defendants were guilty of negligence. Whereupon judgment was entered in favor of the plaintiffs

for the amount of the loss.

These facts appeared in the findings: Early in the year of 1882, two railroad corporations, one an Ohio and the other a West Virginia corporation, obtained proper authority from those States and from the United States government for the construction of a railroad bridge across the Ohio River, opposite the village of Point Pleasant, in West Virginia. The plan of the bridge and the number and size of the stone piers were submitted to the proper officers of the United States government, and approved, and the bridge and piers were duly constructed as authorized by such officers.

"There were six stone piers provided and built for the support of said bridge, one of which stood on top of the bluff bank of the river on the West Virginia side, another on top of the bluff bank on the Ohio side, and the other four be tween said banks of the river. Said four piers between the banks are known as ' A, B, C,' and 'D.' Said pier 'A,' being on the West Virginia side of the river, was located and built at the outer edge of low-water mark; pier B,' 250 feet west therefrom; pier 'C,' 250 feet west of pier 'B,' and pier 'D' at the edge of the water at low-water mark on the Ohio side, at the distance of 500 feet from said pier C,' the west side of pier 'A' and the east side of pier 'D' reaching to the edge of the water at low-water mark. The long span between piers 'C' and 'D' was duly established as the channel span after notice duly given and consultation with those engaged in the navigation of the Ohio River, as required by law."

On January 27, 1882, these corporations entered into a written contract with the defendants for furnishing the ma

Statement of the Case.

terial and building these piers. This contract in terms provided that defendants were "to furnish all material of every kind, name and description necessary for the construction of the same, said material to be subject to the approval of said engineer and to be of such quality as may best insure the durability of said structure; to be at the expense of and subject to all expenses incident to and connected with said work of construction, the said work to be done and completed according to the plan and specifications hereto annexed, marked A, and subject to the inspection and approval of the said engineer of said companies in charge of said work, and which said plans and specifications are hereby expressly made a part of this contract." It further provided that "the work throughout will be executed in the most thorough, substantial and workmanlike manner, under the direction and supervision of the engineer of the company, who will give such directions from time to time during the construction of the work as may appear to him necessary and proper to make the work complete in all respects, as contemplated in the foregoing specifications. Said directions of the engineer will in all respects be complied with. The engineer will also have full power to reject or condemn all work or materials which, in his opinion, do not conform to the spirit of the foregoing specifications, and shall decide every question that may arise between the parties relative to the execution of the work, and his decision in the nature of an award shall be final and conclusive on both parties to this contract."

Under this contract the defendants had, at the time of the injury, completed the two piers on the banks, and partly constructed the four piers between the banks. For two weeks before the injury the river had been rising rapidly, and the water was very high. Business on the river had been partially suspended on account thereof. On the Ohio side the bank was under water, which extended inland a quarter of a mile or The stage of the water in the river was then fifty-five feet above low-water mark. Three of the piers were from thirty-seven to forty-seven feet below the surface of the water, while pier "D" on the Ohio side, which had been completed

more.

Statement of the Case.

to forty-eight feet above low-water mark, was covered to the depth of only about seven feet.

"5. There is a very slight curve in the river at Point Pleasant, the Ohio shore being on the convex side, and at high stages of water it is customary and proper for coal fleets to 'run the points,' running near the shore on the Ohio side at a distance of a quarter of a mile and more above the bridge in descending the river and bearing out to the left of channel pier D and between channel pier D and C and running in near the shore on the West Virginia side about two miles below said village of Point Pleasant, and the channel of the river was between said channel piers C and D, and the usual and proper course was to run between said piers C and D, running the points as before stated.

6

"6. The night before the accident, the plaintiffs' three steamboats the Resolute,' the Alarm,' and the 'Dexter' with coal barges in tow, tied to shore during the night some distance above the bridge.

"The Resolute,' with its tow, was in advance of the other two, passing the bridge on the morning of the accident b tween eight and nine o'clock. The 'Alarm,' with its tow, reached the bridge about 10 o'clock in the morning. Its tow consisted of six coal barges, three abreast, each barge being twenty-six feet wide and drawing between seven and eight feet of water. The front middle barge ran upon and struck said channel pier D, which caused the injury complained of.

"The steamer Dexter,' with its tow, passed shortly after between said channel piers C and D, where the 'Resolute,' with its tow, had previously passed, and while one of the 'Alarm's' barges that struck said pier D was still lying on said pier in plain view.

"7. The morning of the accident was clear and calm, and the Alarm, with its tow, was steaming and handling well. The pilot in charge was well acquainted with the Ohio River at that point and from Pittsburg to all points below, and while the work of constructing said pier was going on had passed there twice a week and saw and knew where said piers were located and to what extent the work had progressed and where