Min. Co. v. Boggs, above cited; Chief Justice Waite saying: "There could have been no decision of the court of appeals against the valid ity of any statute of the United States, because it was found that the facts upon which the defendants below relied to bring their case within the statute in question did not exist. The judgment did not deny the validity of the statute, but the existence of the facts necessary to bring the case within its operation.' Reported only in U. S. Sup. Ct. Rep. Bk. 23 L. ed. 510, 511. error to the circuit court of the United States in admiralty cases, or in cases tried according to the law of Louisiana, need not now be considered. In Martin v. Marks (1877) upon a writ of error to the supreme court of Louisiana in an action in the nature of ejectment, Mr. Justice Miller, speaking for this court, said that the question whether a selection of swamp lands bad in fact been filed by the surveyor general of Louisiana in the General Land Office was "not of that Federal character which authorizes us to review the decision of the supreme court of Louisiana upon it." 97 U. S. 345, 348 [24: 940, 941]. In Kenney v. Effinger (1885) this court disappeals of the state of Virginia, for reasons stated in the opinion delivered by Mr. Justice Field as follows: "The writ of error brought by the trustee raises no Federal question which we can consider. Whether the bond of Effinger was or was not executed with reference to Confederate notes is a question of fact for the state court, and not one of law for this court." 115 U. S. 577 [29: 498]. *In Quimby v. Boyd (1888) in which va-[672 rious errors were assigned in a judgment of the supreme court of the state of Colorado between two adverse claimants of a lode, this court, speaking by the present Chief Justice, dismissed the writ of error for want of jurisdiction, because some of the objections made in this court had not been taken below, and "the other alleged errors involved questions either of fact, or of state and not of Federal law." 128 U. S. 488, 489 [32: 502, 503]. In Republican River Bridge Co. v. Kansas Pac. R. Co. (decided a week later) in an action at law concerning the title to real estate, in which each party claimed under a grant from Congress, a district court of the state of Kan-missed a writ of error to the supreme court of sas, to which the case had been submitted without the intervention of a jury, made findings of fact, upon which it declared the law to be for the defendant; its judgment was affirmed by the supreme court of the state, and the plaintiff sued out a writ of error from this court. Mr. Justice Miller, in delivering the opinion, said: "The finding by the district court was received by the supreme court of the state as conclusive as to all facts in issue, and it is equally conclusive upon us. Where a right is set up under an Act of Congress in a state court, any matter of law found in the record, decided by the highest court of the state, bearing on the right so set up under the Act of Congress, can be re-examined here. In chancery cases, or in any other class of cases where all the evidence becomes part of the record in the highest court of the state, the same record being brought here, this court can review the decision of that court on both the law and the fact, so far as may be necessary to determine the validity of the right set up under 671]*the Act of Congress. But in cases where the facts are submitted to a jury, and are passed upon by the verdict, in a common law action, this court has the same inability to review those facts in a case coming from a state court, that it has in a case coming from a circuit court of the United States. This conclusiveness of the facts found extends to the finding by a state court to whom they have been submitted by waiving a jury, or to a referee, where they are so held by state laws, as well as to the verdict of a jury." And Merced Min. Co. v. Boggs and Crary v. Devlin, above cited, were referred to as supporting this conclusion. 92 U. S. 315-317 [23: 515, 516]. Whether the suggestion in that opinion, as to the power of this court in chancery cases to review the decision of a state court on both the law and the fact, is to be limited to cases in which the decree of that court is general upon the whole record, without specifically passing upon any question of fact; and whether the suggestion, especially if more broadly construed, can be reconciled with the earlier opinions of this court, already cited, upon writs of 810 In California Powder Works v. Davis, ante. p. 206, in which each party to a suit to quiet title claimed title claimed under a patent from the United States confirming a Mexican grant, and the judgment of the supreme court of California rested on the proposition of fact that the grant under which the plaintiff in error deraigned title was simulated and fraudulent, this court dismissed the writ of error for want of jurisdiction. The case now before us is an action of ejectment, which was submitted to the supreme court of the same state, according to the local practice upon findings of fact and a statement of evidence by an inferior court of the state. From the foregoing reasons and authorities, it follows that this court cannot review the decision of the state court upon the question of fact whether the ledge, at the time when the town site patent took effect, was known to be valuable for mining purpose; and the only question of Federal law in the case having been rightly decided by that court, its judg ment is affirmed. Mr. Justice Harlan concurred in the judg ment of affirmance, but not in all the reason ing of the opinion. 151 U. S Martin's Admr. v. Baltimore & O. R. Co.") IN ERROR to the Circuit Court of the Unit 673] *L. C. GERLING. Administrator of Ied States for the District of West Virginia, JOHN W. MARTIN, Piff. in Err., 0. (See "Martin's Admr. v. Baltimore & O. R. Co." B. C. Reporter's ed. 673-710.) Non-resident, who is-removal of suit from state to Federal court-when petition for removal must be filed-filing too late-objection may be waived-amendment-personal representa tive of deceased party-cannot maintain ac tion for personal injury-dismissal of suit. 1. Defendant, in order to be a nonresident of a state within the meaning of the Act of March 3, 1887, chap. 373, must be either a citizen of another state, or a corporation created by the laws of another state. to review a judgment in favor of defendant, The facts are stated in the opinion. error: The application for removal was not made in time. Ex parte Pennsylvania Co. 137 U. S. 451 (34: 2. A railroad corporation of one state, which is also created a corporation of another state, can-738); Fisk v. Henarie, 142 U. S. 459 (35: 1080); not remove into the circuit court of the United Wyche v. Macklin, 2 Rand. (Va.) 426; Hinton States a suit brought against it in a court of the v. Ballard, 3 W. Va. 582; Delaplain v. Armlatter state by a citizen of that state. strong, 21 W. Va. 211, 219. 8. A railroad corporation of one state, which carries on business in another state by the license of the latter state, can remove into the circuit court of the United States a suit brought against it in a court of the latter state by a citizen of that state. The Baltimore & Ohio Railroad Company, as to its franchises and operations in West Virginia, was a "citizen" of that state, and as such incapacitated to remove a case instituted in her courts by another citizen thereof. Ohio & M. R. Co. v. Wheeler, 66 U. S. 1 4. The petition for removal must be filed in the Black, 286 (17: 130); Chicago & N. W. R. Co. state court as soon as the defendant is required v. Whitton, 80 U. S. 13 Wall. 270 (20: 571); to make any defense whatever in that court. Memphis & C. R. Co. v. Alabama, 107 U. S. 5. Where a suit is not removed from a state court 581 (27: 518); Baltimore & O. R. Co. v. Harris, to a Federal court within the time prescribed in 79 U. S. 12 Wall. 82 (20: 358); Baltimore & O. the Act of Congress, and a motion to remand up-R. Co. v. Gallahue, 12 Gratt. 658, 65 Am. Dec. on that ground is promptly made and denied, the judgment of the Federal court will be reversed with directions to remand the case to the state 8. The personal representatives of a deceased party to a suit cannot prosecute or defend the suit after his death, unless the cause of action, on account of which the suit was brought, is one that survives by law. 9. In West Virginia, no action for personal injury can be maintained by the executor or administrator of the person to whom the wrong was doue, except for a wrongful act, neglect or default causing death. 10. Where in an action for personal injuries the judgment was against the plaintiff, and he has died since the action was brought to this court by writ of error, the writ of error will be dismissed. 254; Goshorn v. Ohio County Supra. 1 W. Va. 308; Baltimore & O. R. Co. v. Marshall County Suprs. 3 W. Va. 319; Clark v. Barnard, 108 U. S. 436 (27: 780); Stone v. Farmers Loan & T. Co. 116 U. S. 307 (29: 636); Pennsylvania R. Co. v. St. Louis, A. & T. H. R. Co. 118 U. S. 295 (30: 87); Baltimore & O. R. Co. v. Pittsburg, W. & K. R. Co. 17 W. Va. 812; Henen v. Baltimore & O. R. Co. 17 W. Va. 881; Quarrier v. Baltimore & O. R. Co. 20 W. Va. 424. Mr. John K.Cowen, for defendant in error: served and maintained between corporations The very broad distinction should be obwhich are chartered by one state and afterward permitted by license to come into other states and exercise corporate franchises, and corporations which are chartered by two or more states. In the first class, although the condition upon which the corporation is allowed to exercise its franchise in the foreign state may be that it shall be amenable to all the laws of the state and be liable to suit therein, yet it is still held to be a citizen of the state creating it, and [No. 67.] may, if sued in the foreign state, by a resident Decided Feb. 5, 1894. of that state, remove the suit to the Federal court. Argued Nov. 6, 1893. Baltimore & O. R. Co. v. Harris, 79 U. S. 12 Wall. 65 (20: 354); Callahan v. Louisville & N. R. & T. R. Co. 3 Dill. 267; Pennsylvania R R. Co. 11 Fed. Rep. 537; Williams v. Missouri, Co. v. St. Louis, A. & T. H. R. Co. 118 U. S. 295 (30: 87); Goodlett v. Louisville & N. R. Co. 122 U. S. 391 (30: 1230). In the second class, as the corporation is chartered by both states, it cannot, when sued by a citizen of one of the chartering states, remove the case to the Federal court, on the ground that it is chartered by another state. It is held to be a domestic corporation of either state, in cases of suit by citizens of the same state. Ohio & M. R. Co. v. Wheeler, 66 U. S. 1 Black, 286 (17: 130); Memphis & C. R. Co. v. Alabama, 107 U. S. 581 (27: 518); Stone v. Farmers Loan & T. Co. 116 U. S. 307 (29: 636); Baltimore & O. R. Co. v. Koontz, 104 U. S. 5 (26: 643); Home Ins. Co. v. Morse, 87 U. S. 20 Wall. 445 (22: 365); Leland v. Wilkinson, 81 U. S. 6 Pet. 317 (8: 412). Objection cannot be taken at this time of filing the petition for removal. Ayers v. Watson, 113 U. S. 594 (28: 1093). The time of filing the petition for removal is not a jurisdictional matter, and may be waived by the parties. French v. Stewart, 89 U. 8. 22 Wall. 238 (22: 854); Edrington v. Jefferson, 111 U. S. 770 (28: 594). This action has abated by the death of the plaintiff in error. Cunningham v. Sayre, 21 W.Va. 440; Curry v. Mannington, 23 W. Va. 14. Suits for injuries to the person or character die with the person, and cannot be maintained by the representatives of the deceased party. Flynn v. Perkins, 8 Jur. N. S. 1177. Mr. Justice Gray delivered the opinion of the court: This was an action of trespass on the case, brought March 1, 1888, in the circuit court of Berkeley county in the state of West Virginia, by John W. Martin against the Baltimore & Ohio Railroad Company to recover damages in the sum of $10,000 for personal injuries caused to the plaintiff by the defendant's negligence at Bayview in the state of Maryland on May 22, 1887. On April 12, 1888, the defendant filed in that court a petition, with proper affidavit and bond, for the removal of the case into the Circuit Court of the United States for the District of West Virginia, on the ground that at the commencement of the suit and ever since the plaintiff was a citizen of West Virginia and the defendant a corporation and citizen of Maryland. On April 24, 1888, the plaintiff was permitted by the state court, against the defendant's objection, to file an answer to the petition for removal, denying that the defendant was a nonresident corporation, and alleging that it was for all the purposes of the suit a resident of West Virginia, and therefore not entitled to remove the case; and the court, upon a hearing on that petition and answer, "taking judicial 675] notice *of the statutes incorporating the defendant in Virginia and in this state, and being of opinion that said Baltimore & Ohio Railroad Company is not a nonresident corporation," refused to allow the removal. But the circuit court of the United States, on June 11, 1888, upon the production by the defendant of a duly certified copy of the record of the above proceedings, ordered the case to be docketed in that court; and on July 23, 1888, ordered it to be removed into that court. On December 13, 1888, the plaintiff filed in that court a plea (called in the record a plea in ❘ abatement) that it ought not to take further cognizance of the action, because before and at the time of the removal the defendant was and is now a resident of the district of West Virginia, and is therefore not entitled to remove said action" to that court. A demurrer to that plea was filed by the defendant, and sustained by the court. "And thereupon," as the record stated, "the plaintiff moved to remand this action to the circuit court of Berkley county, which motion the court overruled." The defendant then pleaded not guilty. Upon the issue joined on this plea, the case was tried by a jury, the plaintiff and other witnesses testified in his favor, a verdict was rendered for the defendant under instructions of the court, and judgment was rendered upon the verdict. The plaintiff duly excepted to those instructions, and sued out this writ of error, which was entered in this court on January 13, 1890, together with an assignment of errors, in which the only error assigned to the sustaining of the demurrer to the plaintiff's plea, or to the denial of his motion to remand, was as follows: "The circuit court erred in sustaining the demurrer of the said defendant in error to the plaintiff's plea in abatement, and in overruling the motion of the plaintiff in error to remand the said cause to the state court whence it had been removed to said circuit court of the United States, thus deciding, both in sustaining said demurrer and in overruling said motion, that the Baltimore & Ohio Railroad Company was a nonresident of West Virginia and entitled to remove." *The other errors assigned were in [676 rulings and instructions at later stages of the case, which it will not be necessary to consider. At the present term of this court the plaintiff's death was suggested, and Gerling, his administrator, appointed by the county court of Berkeley county in West Virginia, came in to prosecute in his stead; and the defendant moved to dismiss the writ of error, because an action for personal injuries abated by the death of the plaintiff. It was argued, in behalf of the administrator, that the removal from the state court gave the circuit court of the United States no jurisdiction of this case, for two reasons: 1st. That the Baltimore & Ohio Railroad Company was a resident corporation of the state of West Virginia; 2d. That the application to the state court for removal was not made in time. The consideration of this argument naturally takes precedence; because, if the courts of the United States never lawfully acquired jurisdiction of the case, they have no rightful power to determine any question of the liability of the defendant, or of the right of the original plaintiff in his lifetime, or of bis administrator since his death, to maintain this action, but all such questions can only be determined in the courts of the state in which the action was brought; and, therefore, if the circuit court of the United States had no jurisdiction of the case, its judgment should be reversed for want of jurisdiction, with directions to remand the case to the state court, without passing upon the right to maintain the action in a competent tribunal. ("Martin's Admr. v. Baltimore & O. R. Co.") 1. The Act of March 3, 1887, chap. 873, | property, and of suing and being sued by that which was in force at the time of the removal name, and to enjoy all the powers, rights and of this case, authorized any civil action privileges of a corporation; its general meetbrought in a court of a state between citizens ings were to be held and directors chosen anof different states, and in which the matter in nually in Baltimore, and the president chosen dispute exceeded, exclusive of interest and by the directors; and the president and dicosts, the sum or value of $2000, to be re-rectors were authorized to increase the capital moved into the circuit court of the United stock, to declare dividends, and to construct States "by the defendant or defendants and maintain a railroad from the city of Baltitherein, being non-residents of that state." 24 more to the Ohio river, and to purchase or Stat. at L. 552. In order to be a "nonresident take property for this purpose, making comof that state," within the meaning of this stat-pensation to the owners. 677] ute, the defendant must be a *citizen of another state, or a corporation created by the laws of another state. McCormick Harvesting Mach. Co. v. Walthers, 134 U. S. 41 [33: 833]; Ex parte Shaw, (Shaw v. Quincy Min. Co.") 145 U. S. 444 [36: 768]; Southern Pac. Co. v. Denton, 146 U. S. 202 [36: 942]; Martin v. Snyder, 148 U. S. 663 [37: 602]. In support of the proposition that this company had no right to remove the case into the circuit court of the United States, several legislative acts and judicial decisions of Virginia and West Virginia were relied on, which re quire examination. ginia v. Machir, 18 W. Va. 271. Doubtless, therefore, such statutes must be judicially noticed by the circuit court of the United States, sitting within the state of West Virginia and administering its laws, and by this court on writ of error to that court. Covington Drawbridge Co. v. Shepherd, 61 U. S. 20 How. 227, 232 [15: 896, 898]. In West Virginia, statutes of that state, or of the parent state of Virginia, creating railA railroad corporation, created by the laws road corporations, or licensing and authorizing of one state, may carry on business in another, them to exercise their franchises within the either by virtue of being created a corporation state, are deemed public acts of which the by the laws of the latter state also, as in In- courts of the state take judicial notice, without dianapolis & St. L. R. Co. v. Vance, 96 U. S. proof. Hart v. Baltimore & O. R. Co. 6 W. 450 [24: 752]; Memphis & C. R. Co. v. Ala Va. 336, 349-358; Mahaney v. Kephart, 15 W. bama, 107 U. S. 581 [27: 518]; Clark v. Bar- Va. 609, 624; Henen v. Baltimore & O. R. Co. nard, 108 U. S. 436 [27: 780]; Stone v. Farm-17 W. Va. 881, 899; Northwestern Bank of Virers Loan & T. Co., 116 U. S. 307 [29: 636]; and Graham v. Boston, H. & E. R. Co., 118 U. S. 161 [30:196]; or by virtue of a license, permission or authority, granted by the laws of the latter state, to act in that state under its charter from the former state. Baltimore & O. R. Co. v. Harris, 79 U. S. 12 Wall. 65 [20: 354]; Baltimore & O. R. Co. v. Koontz, 104 U. S. 5 [26643]; Pennsylvania R. Co. v. St. By the statute of Virginia of March 8, 1827, Louis, A. & 7. H. R. Co., 118 U. S. 290 [30: chap. 74, entitled "An Act to Confirm a Law, 83]; Goodlett v. Louisville & N. R. Co., 122 Passed at the Present Session of the General AsU. S. 391 [30: 1230]; Marye v. Baltimore & O.sembly of Maryland, entitled 'An Act to Incor R. Co., 127 U. S. 117 [32: 94]. In the first al-porate the Baltimore & Ohio Railroad Compaternative, it cannot remove into the circuit ny,'" and reciting that act in full, it was enactcourt of the United States a suit brought ed that "the same rights and privileges shall be against it in a court of the latter state by a and are hereby granted to the aforesaid compacitizen of that state, because it is a citizen of ny *within the territory of Virginia, [679 the same state with him. Memphis & C. R. as are granted to them within the territory of Co. v. Alabama, above cited. In the second Maryland; the said company shall be subject to alternative, it can remove such a suit, because the same pains, penalties and obligations, as are it is a citizen of a different state from the imposed by said act; and the same rights, priviplaintiff. Baltimore & O. R. Co. v. Koontz, leges and immunities which are reserved to above cited. the state of Maryland, or to the citizens thereof, are hereby reserved to the state'of Virginia and her citizens;" excepting as to the location of the railroad in Virginia, and the property to be taken for its construction; and excepting also that any injury at any time done to the road within the limits of Virginia should be punished according to its laws in force for the protection of its public works. Whether the Baltimore & Ohio Railroad Company had the right to remove into the circuit court of the United States this action, brought against it by a citizen of West Virginia in a court of that state, therefore depends upon the question whether this company was a corporation created by the laws of Maryland only, or by the laws of West Virginia also. This company, as is admitted, was originally incorporated by the statute of Maryland of February 28, 1827 (1826, chap. 123) entitled An act to incorporate the Baltimore & Ohio Railroad Company," by which subscriptions to its capital stock were to be received by commis678]sioners therein appointed, *rights to subscribe for certain amounts of stock were reserved to the state of Maryland and to the city of Baltimore, and, as soon as a certain amount had been subscribed for, it was to become a corporation by the name of the Baltimore & Ohio Railroad Company, capable of purchasing, holding and selling real and personal By section 7," the stock, property and profits of said company, so far as the same may be or accrue within this commonwealth, shall be subject to general taxation in like manner and on the same footing with other similar com panies within this state: Provided, however, that said taxing power shall not be exercised until and unless the net income of the said Baltimore & Ohio Railroad shall exceed six per centum per annum upon their capital invested." By section 8, "the general assembly hereby reserves to itself the power of hereafter altering, amending or modifying any or any part of the provisions of this act: Provided, that the rights of property and franchises acquired under this act, and the free use and enjoyment of their rights and privileges, as granted by this or any other former act now in force, shall not be taken away or impaired by any such further act of legislation.' " 680] *The statute of Virginia of March 11, 1837, chap. 118 (referred to in section 6 of the statute of 1847, above cited) was entitled "An act prescribing certain regulations for the incorporation of railroad companies;" and began by enacting that "whenever it shall be deemed necessary by the general assembly to grant a charter for the incorporation of a company to construct a railroad, the following general provisions shall be deemed and taken to be a part of the said charter or act of incorporation, to the same effect as if the same were expressly re-enacted in reference to any such charter or act, except so far as such charter or act may otherwise expressly provide." Those general provisions related to the exercise of the right of eminent domain, and the payment of compensation for property taken or injured; the time of completing the works of a company so incorporated; the annulling of its charter by the state of Virginia in case it should afterwards fail to keep its road in repair, and to afford the intended accommodation to the public, for three successive years; the right and duty of transporting persons and property; and other matters not neccessary to be specified. Upon the division of the state of Virginia, and the admission of West Virginia into the Union as a state, that part of the Baltimore & Ohio Railroad, which had been within the state of Virginia, came within the state of West Virginia. See Act of Congress of December 31, 1862, chap 6; 12 Stat. at L. 633; Virginia v. West Virginia, 78 U. S. 11 Wall. 39 [20:67]. But the general statutes of West Virginia, cited for the plaintiff, do not appear to have any important bearing upon this part of the case. The statutes of West Virginia of 1872, chap. 227, 16, and 1882, chap. 97, S 30, by which all railroad corporations, "doing business in this state under charters granted and laws passed by the state of Virginia or this state," are declared to be domestic corporations, were evidently aimed at those companies which had been made corporations by either state, whether under special charters or general laws; and were probably intended to make sure that corporations, created by Virginia before the separation of West Virginia, and doing business within the territory of the latter, should be consider681] ed *corporations of this state; and can not reasonably be construed as including corporations created by some other state only. Section 30 of chapter 54 of the code of West Virginia authorizes any corporation, duly incorporated by the laws of any other state, to bold property and transact business in West Virginia, "upon complying with the requirements of this section, and not otherwise." These requirements are that every such corporation shall file with the secretary of state a copy of its charter, or of its articles of association and of the law under which it is incorporated, and shall receive from him a certificate of the fact, and file this certificate with the clerk of a county in which its business is conducted. By a further provision of this section, "every railroad corporation, doing business in this state under the provisions of this section, or under charters granted or laws passed by the state of Virginia, or this state, is hereby declared to be, as to its works, property, operations, transactions and business in this state, a domestic corporation, and shall be so held and treated in all suits and legal proceedings which may be commenced or carried on by or against any such railroad corporation, as well as in all other matters relating to such corporation." It then prohibits, under penalties, any "railroad corporation, which has a charter or any corporate authority from any other state," to do business or to bring any action in the state, until it has filed with the secretary of state a writing under its corporate seal accepting the provisions of this section. This section does not make any corporation of another state, which has neither complied with its requirements, nor been previously made a corporation by special charter or general law of Virginia or of West Virginia, a domestic corporation of West Virginia. It has not been proved or suggested that the Baltimore & Ohio Railroad Company ever complied with the requirements of this section. Nor, as has been seen, had it beea previously made a corporation by any statute of West Virginia. The question under consideration, therefore, turns upon the construction and effect of the statutes of Virginia, above referred to. *The position that, by force of those [682 statutes of Virginia, the Baltimore & Ohio Railroad Company became a corporation of Virginia, and consequently of West Virginia, is sought to be maintained by expressions of opinion to that effect by the court of appeals of Virginia in Baltimore & O. R. Co. v. Gallahue (1855) 12 Gratt. 655, 65 Am. Dec. 254, and by the supreme court of appeals of West Virginia in Goshorn v. Ohio County Suprs. (1865) 1 W. Va. 308, and in Baltimore & O. R. Co. v. Marshall County Suprs. (1869) 3 W. Va. 319. But in the first case the point decided was that the Baltimore & Ohio Railroad Company was liable to be sued in Virginia; the second case concerned the validity of a county subscription to stock of a railroad company incorporated in Pennsylvania, and authorized by a statute of Virginia to construct a railroad therein; and the third case involved only the right of the state of West Virginia to tax the Baltimore & Ohio Railroad Company. On the other hand, this court, in Baltimore & O. R. Co. v. Harris (1870) 79 U. S. 12 Wall. 65 [20: 354], upon great consideration, and with |