condition, and if no jurisdictional question be made, based on the provision of the federal constitution, conferring upon federal courts jurisdiction over controversies between citizens of different states, state courts may proceed to fully try and determine the matters brought before them without regard to the domicile of the parties. The jurisdiction in most states is, however, restricted to resident citizens, with certain statutory extensions of the right to others, based either upon comity or convenience to their own citizens, as where the party defendant is a resident, or the subject of the action is situated, or the cause of action shall arise within the state.2

1 The courts of New York will not interfere with the internal affairs of a foreign corporation to compel it to declare and pay dividends. Bedford v. N. Y. Iron Mine, 56 Civ. Proc. R. 236.

2 For an able opinion upon the construction of the S. Car. statute, in a case where it was held that the right to sue in the courts of that state had not been extended to non-resident corporations, see Cent. R. & Bkg. Co. v. Ga. Constr. & Ins. Co. (S. C.), 7 Ry. & Corp. L. J. 422; Cummings v. Wingo, 31 S. C. 427; 10 S. E. 107. See also Whitehead v. Buffalo, etc., R. Co., 18 How. Pr. 230. The provision of Code Civil Proc. N. Y. sec. 1775, which requires a pleading to state whether a party is a corporation or not, and, if a corporation, whether a domestic or foreign corporation, must be availed of by motion, and not by demurrer to a complaint. Affirming 10 N. Y. S. 36. Rothschild v. Grand Trunk Ry. Co., 14 N. Y. S. 807 (July, 1891). Where a statute gives right to sue and imposes liability to be sued upon foreign corporation, resident stockholders of a foreign corporation doing business within the state may avail themselves of its provisions. Babcock v. Schuylkill & L. V. Ry. Co., 56 Hun, 649; 9 N. Y. S. 845; Ives v. Smith, 55 Hun, 606; 8 N. Y. S. 46; Robinson v. Oceanic, etc., Nav. Co., 112 N. Y. 315; Humphrey v. Newport News, etc., Co., 33 W. Va. 135; 10 S. E. 39. Although, under Code Civil Proc. N. Y., 1780, only a resident of the state can sue a foreign corporation on a cause of action for tort arising without the state, a demurrer to a complaint in such an action, on the ground that the court has no jurisdiction of the subject of the action, cannot be sustained merely because the complaint does not allege residence of the plaintiff, where his non-residence does not appear on the face of the complaint; as section 488 authorizes a demurrer to the complaint only where one or more of the grounds specified Gurney v. Grand appear upon the face thereof." Trunk Ry. Co., 13 N. Y. S. 645. The fact that a foreign corporation has not obtained a permit to do business in the state does not deprive it of the right to go into court and assert rights and recover property already acquired. Tex. L. & M. Co. v. Worsham, 76 Tex. 556; 13 S. W. 384; not that it has not com

The manner of acquiring jurisdiction by state courts is largely regulated by statutes, the construction of which, as well as the question of what constitutes service in a given state, is the peculiar province of its courts.1

plied with a statute requiring that it shall file a copy of its charter and statement with the secretary of state and recorder of the county wherein it intends to transact business before commencing business, when the action is not based upon any contract made by it in the transaction of its business, but to recover taxes paid under protest. Powder Riv. Cattle Co. v. Custer Co., 9 Mont. 145; 22 P. 383. A statute requiring a corporation to file articles before it can maintain any action held not to apply to foreign corporations. Yuba W. & M. Co. v. Rosa, 80 Cal. 333. Burlington M. R. Co. v. Thompson, 31 Kan. 180; 1 P. 622. Foreign corporations doing business in Montana, having an accredited agent on whom legal process may be served, who exercises openly his authority as such, may plead the benefit of the statute of limitations. King v. National M. & E. Co., 4 Mont. 1; 1 P. 727.

Where a summons to a foreign corporation is returned not served, and the affidavit states that the plaintiff could not, after due diligence, find the defendant corporation within the state, neither of these things tend to prove that there was no officer of the corporation in the state upon whom personal service could be had according to section 1092 of the compiled Laws of Nevada. In order to justify the failure of the court to mail the defendant a copy of the summons and complaint, there must be an affidavit that the residence of the foreign corporation was not known. Victor Mill & Min. Co. v. Justices' Court, 18 Nev. 21; 1P. 831. A foreign banking corporation can sue in the circuit court of the United States sitting in California, notwithstanding its failure to comply with St. Cal. 1876, p. 729, requiring every corporation to record each year a sworn statement of its capital, assets, etc., and prohibiting any corporation that fails to comply with the law from suing in the state courts. Bank of British North America v. Barling, 44 F. 641. A foreign corporation has no local county residence in California where alone it can be sued. It is liable to be sued in any county in the state, subject to the right of such corporation to move for a change upon sufficient showing. Thomas v. Placerville G. Q. Min. Co., 65 Cal. 600; 4 P. 641.

1 See Gibson v. Mfg. Fire & M. Ins. Co., 144 Mass. 81; 10 N. E. 729; Hester v. Rasin Fertilizer Co. (S. C.), 12 S. E. 563; Friezen v. Allemania F. Ins. Co., 30 F. 349; Carpenter v. Westinghouse A. B. Co., 32 Fed. 434; First Nat. Bank v. Burch, 76 Mich. 608; 43 N. W. 453; Maxwell v. Wayne Cir. Judge, 60 Mich. 36; Soc. Fet. A. v. Williken, 135 U. S. 304. No jurisdiction of a foreign corporation which does not maintain an office or transact business within the state is acquired by service of process on the president thereof when he is within the state casually on private business. Reifsnider v. American Imp. Pub.

Co., 45 F. 433.

Under Act Pa., March 21, 1849, providing that in actions against foreign corporations process may be served upon any officer, agent, etc., the courts of Pennsylvania can acquire no jurisdiction of a foreign corporation which has never done business in the state by service of process upon its president while he is temporarily in the state for either business or pleasure. Phillips v. Burlington Library Co. (Pa.), 21 A. 640.

The particular agent upon whom service may be had is sometimes designated;1 while the language of some of the statutes permits service to be had upon any agent found within the state.2

1 Under Code Civil Proc. N. Y., § 431, subd. 3, providing that a summons shall be served on a domestic corporation by delivering a copy thereof to the president or other head of the corporation, the cashier, treasurer, or managing agent, service on an employe of a domestic corporation who attends to the publication of a periodical issued by it, and to its printing, binding and mailing, under instructions received immediately from the officers of the company, is insufficient. Rutland v. Canfield Pub. Co., 10 N. Y. S. 913. Service of a writ of garnishment on the "manager" of a domestic corporation is not sufficient under Sayles' Civil St. Tex., art. 1223, providing that “the citation may be served on the president, secretary, or treasurer of such company or association, or upon the local agent representing such company or association in the county in which suit is brought." Tompkins Machine & Implement Co. v. Schmidt (Tex.), 16 S. W. 174. Under the law of Tennessee (2 Thomp. & S. St. Tenn. 1871, p. 1190; Mill & V. Code Tenn., p. 660), providing that in actions against corporations process may be served on the president or other head of the corporation, or, in his absence, on the cashier, etc., or, if none of those officers reside in the state, then on the chief agent in the county where suit is brought, a return in an action against a railway company, that the process was served on the superintendent, the highest officer to be found in the county, is sufficient. Affirming 88 Tenn. 721; 13 S. W. 698; Kansas City, Ft. S. & M. R. Co. v. Daughtry, 11 S. Ct. 306. Under the provision of the Colorado Code, that service upon corporations "shall be made by delivering a copy of the summons to the president or other head of the corporation, or to the secretary, cashier, treasurer, or general agent thereof, but if no such officer can be found in the county, service may be had on any stockholder," service upon the vice-president of a corporation is sufficient, even though the return does not show that the president could not be found in the county. Comet Consolidated Min. Co. v. Frost (Colo.), 25 P. 506. One who gratuitously transfers his stock in a foreign corporation to trustees, whose names he does not know, for some unknown and undefined purpose, and at the same time contributes $50 to cover the expenses of the transfer, is still a stockholder in such foreign corporation, within the meaning of Code Civil Proc. Colo., § 40, which authorizes the service of process on a foreign corporation by a delivery of the writ to a stockholder, when it has no agent or officer within the state. Colorado Iron-Works v. Sierra Grande Min. Co. (Colo.), 25 P. 325.

2 The vice-president and the general superintendent are agents within the meaning of a statute of Virginia providing for service of process against a corporation on its president, or other chief officer in his absence, on any agent thereof, or on any person declared by the laws of that state to be an agent of such corporation. Norfolk & W. R. Co. v. Cottrell, 83 Va. 512; 3 S. E. 123. See also Dillard v. Central Virginia Iron Co., 82 Va. 734; 1 S. E. 124; Hill v. St. Louis Ore & Steel Co., 90 Mo. 103; 2 S. W. 289. In an action against a New York corporation publishing a newspaper there, service of summons in New Jersey upon a person whose only connection with the company consists in

1

§ 540. Actions between foreign corporations.-The authorities are not clear upon the question of entertaining jurisdiction in state courts of actions between foreign corporations. A principal difficulty in such cases is the want of power to enforce the judgments in such cases. The court refused to entertain jurisdiction of an action by a stockholder of a foreign corporation to restrain it from an ultra vires act;2 also the application of a stockholder of a foreign corporation, doing business in the state, for a mandamus to compel the corporation to annul a forfeiture of his stock and reinstate him as stockholder, also where the action was by a resident stockholder in a foreign corporation to set aside its lease to a resident corporation.* Exclusive jurisdiction of suits between national banks and shareholders therein is vested in state courts, and is taken away from United States Circuit Courts.5

receiving advertisements at the published rates, forwarding the same to the home office, receiving thence bills for the same and collecting them upon commission, is not a service upon an agent of the company, within the meaning of the New Jersey corporation act, § 88. Mulhearn v. Press Pub. Co. (N. J.), 20 A. 760.

1 Williston v. Mich., etc., R. Co., 95 Mass. 400. The service of notice upon a shareholder in an insolvent corporation provided for in sec. 32, c. 23, Comp. L. Kan., with a view to enforcing his liability, partakes of the notion of an original process and the service of such notice beyond the jurisdiction of the court and outside the state will not confer jurisdiction upon the state court or authorize it to award an execution against the property of the stockholders found within the state. Howell v. Manglesdorf, 33 Kan.; 5 P. 259.

2 Howell v.

Chicago, etc., R. Co., 51 Barb. 378; and entertain it in Ives v. Smith, 3 N. Y. S. 645; 19 N. Y. S. Rep. 556.

3 North State Copper & Gold Min. Co. v. Field, 64 Md. 151; 20 A. 1039. Gregory v. N. Y., etc., R. Co., 40 N. J. Eq. 38. In Cunningham v. Pell, Paige, it was held that no personal judgment could be rendered against an absent director not personally served; but in another case where service on the directors was personal, the court sustained the jurisdiction, saying: "The relief within the power of the court to grant may be incomplete, and not commensurate with the injuries and loss sustained, growing out of the fact that material interests affected are outside of this jurisdiction; but that affords no adequate reason why an attempt in that direction should not be made." Irwin v. Or., etc., Co., 28 Hun, 269. See also Cromlisle v. Shenandoah V. R. R. Co., 28 W. Va. 365.

5 Whittemore v. Amoskeag Nat. B'k, 10 S. Ct. 592; 134 U. S. 527. Act of Congress, July 12, 1882.

A court will not order a foreign corporation to pay a dividend,' or settle disputes between rival bodies of stockholders, concerning conflicting interests in a foreign corporation. A foreign corporation will not be enjoined from delivering its stock and securities to a construction company; nor will one foreign corporation be ordered at the suit of another to make a conveyance of land situated in another state. It would seem that there should be no hesitancy to grant the relief where a mere money judgment is asked or the title to property within the jurisdiction is involved or the action is in rem.

But it was recently held by the Massachusetts court that although the laws of Kansas provide that if a judgment creditor of certain corporations is unable to find property whereon to levy execution, he may proceed by action to charge the stockholders with the amount of his judgment, and that a resident of New York holding an unsatisfied judgment against a Kansas corporation, which has no place of business in Massachusetts, cannot maintain an action in the latter state against a resident of California to establish his personal liability as a stockholder in such corporation, where no proceedings have been taken in Kansas to establish such personal liability.

1 Redmond v. Enfield, etc., Co., 13 Abb. Pr. N. S. 332. In New Haven H. S. N. Co. v. Linden Spring Co., 142 Mass. 349; 7 N. E. 773, the court refused to entertain jurisdiction although the foreign corporation appeared by attorney.

2 Wilkins v. Thorne, 60 Md. 253. Nor will a domestic corporation be ordered to do an act in another state. Port Royal, etc., R. R. Co. v. Hammond, 58 Ga. 523. Compare Fisk v. Chicago, etc., R. R. Co., 53 Barb. 513; Boardman v. Lake, R. R., 84 N. Y. 157; Prouty v. Mich., etc., R. R. Co., 1 Hun, 655. See also Irwin v. Or. etc., Co., 28 Hun, 269; 35 Id. 544.

3 Kansas, etc., R. R. Co. v. Topeka, 135 Mass. 34.

♦ Cumberland, etc., Co. v. Hoffman, etc., Co., 30 Barb. 159, 171. See 4 N. N. Supp. 836.

Bank of North America v. Rindge (Mass.), 27 N. E. 1015.