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tion the affidavit must be made by an officer,' and hence it cannot be made by a mere local agent, in a case where the party demanding the change is a foreign insurance company.2 So, the attorney of a foreign corporation could not make the affidavit, notwithstanding the inconvenience which the rule entailed. These decisions seem to be too narrow. By analogy to what has been held, with reference to the removal of causes to the Federal courts, it would follow that any attorney or agent of the corporation, duly authorized to make the application, and personally capable of deposing to the facts, may make such an affidavit."

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§ 7435. Residence of a Corporation the Residence of its President. In Kentucky there is a statutory rule to the effect that the residence of a corporation, which is a common carrier, is the county in which its chief officer or agent, if in the State, resides when the action is commenced."

§ 7436. National Banks are State Corporations for Jurisdictional Purposes.- National banks are State, and not Federal, corporations, for jurisdictional purposes. Under the original national currency act they were deemed domestic, and not foreign, corporations, within the State wherein they were

1 Western Bank of Scotland ♥. Tallman, 15 Wis. 92.

'Wheeler & Wilson Man. Co. v. Lawson, 57 Wis. 400.

'Western Bank of Scotland v. Tallman, 15 Wis. 92.

• Post, § 7469. Compare Market Nat. Bank v. Hogan, 21 Wis. 317. The decisions just cited from Wisconsin illustrate the difficulties which beset courts when they endeavor to legislate,-to supply by judicial construction a legislative casus omissus. The Wisconsin statute relating to changes of venue did not have in view the case where a corporation might be a party, and did not make any provision for changing the venue

in such a case. Other legislatures have been more provident. In Pennsylvania, as early as 1834, a railroad company might remove an action pending against it to another county at any time before the jury was sworn; and upon the presentation of the affidavit, required by the act, made by the president of the company, further proceedings were coram non judice. Railroad v. Cummins, 8 Watts (Pa.), 450.

Harper v. Newport News &c. Co., 90 Ky. 359; Sherrill v. Chesapeake &c. R. Co., 89 Ky. 302. Compare Chesapeake &c. R. Co. v. Heath, 87 Ky. 651.

created. On the other hand, they were liable to be sued in the courts of a State other than that of their creation, provided jurisdiction could be obtained over them in any of the recognized modes of obtaining jurisdiction in a domestic tribunal over a foreign corporation. According to some judicial opinion, they were citizens of the State within which they were created, in such a sense that an action brought by them against a citizen of the State was not removable to a Federal court.' But the contrary was held in the Federal courts, until the question was settled by Congress in the Act of July 12, 1882, which enacts as follows: "The jurisdiction for suits hereafter brought by or against any association established under any law providing for national banking associations, except suits between them and the United States, or its officers and agents, shall be the same as, and not other than, the jurisdiction for suits by or against banks not organized under any law of the United States, which do, or might do, banking business where such national banking associations may be doing business when such suits may be begun." Under this act, notwithstanding other provisions of the Revised Statutes of the United States," a Circuit Court of the United States has no jurisdiction if all the parties to the suit are citizens of the State within which the national bank is situated. The State courts, in dealing with national banks, do not exercise a new and special jurisdiction conferred upon them by Congress, but proceed in the exercise of the ordinary jurisdiction conferred upon them by their own constitutions and laws. The State

1 Market Bank v. Pacific Bank, 64 How. Pr. (N. Y.) 1. Compare post, §§ 7475, 7476, 7899.

Cooke v. State Nat. Bank, 50 Barb. (N. Y.) 339; s. c. 3 Abb. Pr. (N. 8.) (N. Y.) 339.

Davis v. Cook, 9 Nev. 134. 20 U. S. Stat., ch. 290, § 4. Rev. Stat. U. S., §§ 5209, 5239. Whittemore v. Amoskeag Bank, 134 U. S. 527. The act refers only to suits commenced after its passage: First Nat. Bank v. Morgan, 132 U. 8.

141. Prior to the passage of this act, the venue of actions in State courts against national banks was restrained to "the county or city in which said association is located," etc. 13 U. S. Stat., ch. 106, § 8; Act Feb. 18, 1875; 18 U. S. Stat. 316, 320, ch. 80; Rev. Stat. U. S., § 5198. But this was a personal privilege which the bank might waive. First Nat. Bank v. Morgan, 132 U. S. 141.

'First Nat. Bank v. Overman, 22 Neb. 116; Claflin v. Houseman, 93

courts have jurisdiction of actions against a national bank to recover the penalty for taking usurious interest denounced by section 5198 of the Revised Statutes of the United States.1 Such an action is properly brought in any County or District Court of the State in which the national banking association is located, having jurisdiction of the amount involved.

§ 7437. Jurisdiction and Venue in Respect of Corporations Chartered by the United States Other than National Banks.-A corporation chartered by an act of Congress cannot insist, as of right, that it shall sue and be sued exclusively in courts of the United States and of the State, in which the principal office is located; but Congress has power to confer this right in express terms.*

§ 7438. State Jurisdiction in the Case of Interstate Corporations. We have elsewhere had occasion to consider the anomalous nature of a corporation which has been created by the concurrent legislation of two States, and we have had occasion to note the idle judicial casuistry which has been employed when dealing with the status of such a corporation. We have had occasion to note the theory that such concurrent action operates to create two corporations, and that one of these two corporations which has been created by the legislature of one

U. S. 130; Schuyler Nat. Bank v. Bollong, 28 Neb. 684; s. c. 24 Neb. 821.

1 Schuyler Nat. Bank v. Bollong, 24 Neb. 821; s. c. on second appeal, 28 Neb. 684.

* Schuyler Nat. Bank v. Bollong, 28 Neb. 684.

Bank v. Deveaux, 5 Cranch (U. S.), 61.

• Osborn v. Bank, 9 Wheat. (U. S.) 738; Bank v. Planters' Bank, 9 Wheat. (U.S.) 904; Rev. Stat. U. S., § 629, subsec. 10; Kennedy v. Gibson, 8 Wall. (U. S.) 498; Bank of Bethel v. Pahquioque Bank, 14 Wall. (U.S.) 383; Bank of Omaha v. Doug

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lass County, 3 Dill. (U. S.) 298; Foss v. First Nat. Bank, 3 Fed. Rep. 185; Commercial Bank v. Simmons, 6 Chic. Leg. N. 344. As to the removal of causes in the case of corporations created by act of Congress, see post, § 7475. A corporation chartered by the United States, and having a domicile in Pennsylvania for the purposes of jurisdiction, may be sued in any county in that State where legal service of process may be had. Eby v. Northern Pac. R. Co., 13 Phila. (Pa.) 144.

• Ante, §§ 47, 319, 320, 688. Compare post, §§ 7452, 7472, 7490, 7799, 7817, 8012, 8020, 8128.

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of the concurring States, is a domestic corporation within that State; whereas the other of these two corporations created by the legislation of the neighboring State is a foreign corporation in the former State, but a domestic corporation in the latter.' The result of this weak casuistry is that there are two corporations in each State, one domestic, and the other foreign. But there is but one board of directors. This board has been elected at one election; it proceeds under a single collection of by-laws; it sits in one place only; and no practical man of business ever dreams of a conception so fanciful as the conception that this body is really two bodies. But whatever may be the theory, all courts, State and Federal, agree that there is one domestic corporation in each State, subject to the jurisdiction of its courts, in like manner as any corporation created by or under its legislation, and, as such, capable of suing and being sued there, although upon a cause of action arising in the other State. But it is possible for such an anomalous state of things to exist, as for a franchise to operate an interstate bridge, or an interstate railway, to be held by one collection of persons, natural or incorporate, under a grant of the legislature of one of the adjoining States, and by another such collection of persons under a similar grant from the legislature of the other adjoining State,-in which case an action by the possessors of the franchises granted by one State, against the possessors of the franchises granted by the other State, can only be maintained in the other State, because they are a foreign corporation in respect of the former State, and have no domicile there for jurisdictional purposes.

1 Ante, §§ 47, 319.

Ohio &c. R. Co. v. Wheeler, 1 Black (U. S.), 286.

s Guinault v. Louisville &c. R. Co., 41 La. An. 571; s. c. 6 South. Rep. 850. 4 Mississippi & Tennessee R. Co. v. Ayres, 16 Lea (Tenn.), 725.

The text is perhaps justified by a case where a bill was filed by the plaintiffs, owners of a charter from the State of South Carolina, of the

Coming now to

Augusta bridge over the Savannah River, which divides South Carolina from Georgia, against the city council of Augusta, in Georgia, owners of a charter of the same bridge from the State of Georgia, for an account of tolls collected by the defendants, and for an injunction to restrain them from collecting more than one moiety of tolis, and also from collecting any tolls whatever at a new bridge which

the manner in which the courts of one of these concurring States will deal with such a corporation, we find that the Court of Appeals of Maryland has asserted the doctrine that a corporation owing its existence in part to the legislature of the State of Maryland, and in part to the legislature of another State, may be restrained, in Maryland, from expending its funds for any other than corporate purposes anywhere.' The difficulty of accepting the conclusion is, that the courts of the other concurring State might get hold of the same corporation and make an opposing order. This is plain when the doctrine of the Maryland court is considered. The court held that, where a corporation is chartered in two separate States, and exercises its franchise in each, a plea to the jurisdiction in the courts of either State is not tenable, on the ground that the corporate property lies in a different State, or that it owes its corporate existence in part to another State. These difficulties point to the propriety of interstate corporations being chartered by Congress under its power to regulate commerce between the States. Indeed it is a matter of surprise that these interstate corporations, created by the concurrent legislation of different States, have been able to get along as well as they have, without more frequent complications in respect of jurisdiction; and the fact that they have been able to do so is very creditable to our State judicatories.

§ 7439. Actions against Branches of Corporations. It was customary, in the early days of our industrial development, for the legislatures of the different States to incorporate banks with the power to establish branches at different places in the States. These branches were not distinct corporations

they had built in violation of plaintiff's charter. It was averred in the bill that, of so much of the Augusta bridge as lay within the territorial limits of South Carolina, the plaintiffs were the owners, and it was incidentally stated that the defendants owned some lots in Hamburgh in South Carolina. A plea to the juris

diction, because the defendants were non-residents of South Carolina, was sustained. McKinne v. Augusta, 5 Rich. Eq. (S. C.) 55.

1 State v. Northern Railway Co., 18 Md. 193.

2 State v. Northern Railway Co., 18 Md. 193.

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