by the State of Georgia during the Civil war is recognized after the war has ceased as a corporation of Georgia; and a corporation created by the Territory of Kansas is to be regarded as a corporation of the State of Kansas after its admission to the Union.R

In case of a division of the territory of the incorporating State, the corporation must evidently belong to one part or the other: it cannot be a corporation of both governments. After West Virginia was set off from Virginia it was held that a corporation previously chartered continued to be a Virginia corporation unless it became affirmatively a corporation of West Virginia, by the act of the latter State, and that it did not become so merely because it had been formed to carry on mining operations within the territory that afterwards became West Virginia.9

Similarly where territory is ceded from one State to another, a corporation, even if it is located within the ceded territory, remains a corporation of the former State.10 But where one Territory is admitted into the Union as two States, neither of which exclusively represents the old Territory (as happened upon the admission of Dakota Territory as the States of North and South Dakota) it would seem that a corporation created by the Territory would become a corporation of that State in which it was in fact located at the time of the division.

7 United States v. Insurance Companies, 22 Wall. 99, 22 L. ed. 816; Importing & Exporting Co. v. Locke, 50 Ala. 332.

8 Kansas Pac. R. R. v. Atchison, T. & S. F. R. R., 112 U. S. 414, 28 L. ed. 794.

• Kanawha Coal Co. v. Kanawha & Ohio Coal Co., 7 Blatch. 391, 406, Fed. Cas. No. 7,606. A statute of the new State provided a process by which a corporation previously chartered by Virginia might become a corporation of West Virginia, and act no longer under its former charter. This creates in effect a new corporation, and therefore a corporation which relied on a charter given before separation could only be a Virginia corporation. Query whether this would naturally be so in the absence of some such statute of West Virginia.

10 Myers v. Manhattan Bank, 20 Ohio, 283.

873. Residence of a corporation.

A corporation cannot in the strictest sense reside in a foreign State, for the same reason that it cannot acquire a domicil there; because it cannot act personally outside the territory of the State which charters it. A corporation acting in a foreign State is in the same position as any non-resident who sends his agents into a State to do business for him. The opening of an office, and the transaction of business under the forms prescribed by law do not make the corporation a resident.11 It was therefore correctly held that if a chattel mortgage must be acknowledged where the mortgagor resides, a foreign corporation cannot acknowledge such a mortgage.12 And where a statute provides that if a mortgagor is a non-resident, the mortgage may be acknowledged by any officer authorized to take acknowledgments, a chattel mortgage by a foreign corporation is properly acknowledged before a notary public at its home office, he being such an officer.13 So under a statute subjecting a non-resident who does business in a State to taxation on the sums invested in the business, a foreign corporation doing business in the State is taxable as a nonresident.14 And conversely, under a statute taxing personal property in the place where the owner is an inhabitant, the property of a foreign corporation is not taxable.15 And under a statute imposing an income-tax on residents of a country, a foreign corporation doing business in the country is not subject to the tax.16 Where a statute gives a court power to

11 Boyer v. Northern Pac. Ry., 8 Idaho, 66 Pac. 826 (overruling Easley v. Ins. Co., 4 Ida. 205, 38 Pac. 405); Hammond Beef & Provision Co. v. Best, 91 Me. 431, 40 Atl. 338, 42 L. R. A. 528; Bergner & Engel Brewing Co. v. Dryfus, 172 Mass. 154, 51 N. E. 532, 7 A. S. R. 251; Shepard & Morse Lumber Co. v. Burleigh, 50 N. Y. S. 135, 27 App. Div. 99. 12 Cook v. Hager, 3 Colo. 386.

13 Hewitt v. Gen. Elec. Co., 164 III. 420, 45 N. E. 725.

14 British Com. Life Ins. Co. v. Comrs., 1 Abb. App. (N. Y.) 199; People v. Barker, 141 N. Y. 118, 35 N. E. 1073, 23 L. R. A. 95; People v. Feitner, 62 N. Y. S. 1107, 49 App. Div. 108.

15 Boston Investment Co. v. Boston, 158 Mass. 461, 33 N. E. 580. 16 Attorney-General v. Alexander, L. R. 10 Ex. 20.

appoint a receiver of the property of residents, it cannot appoint a receiver for a foreign corporation; 17 nor can a foreign corporation become a voluntary insolvent under a law requiring the petition to be filed in the county in which the petitioner resides. 18

The State of West Virginia has, however, made a difference in its tax law between a resident and a non-resident domestic corporation, thus assuming the possibility of residence outside the State of charter; and the distinction has been held reasonable by the court.19 While this use of "resident" may not be accurate, it is at least clear and useful.

$74. Presence for purposes of jurisdiction.

For the purpose of making a person party to a litigation, a State may take jurisdiction over him if he is found within the State, although he is neither resident nor domiciled there; and even if a foreign corporation is held not to be resident, it does not follow that it may not be found in the State.

On strict principle, however, it seems as impossible that a corporation should be found in a foreign State as that it should reside there; the same reason would cover both cases, namely, that the corporation cannot exist as such in a foreign State. The fact that it does business in the foreign State would not alter the matter; an individual might in the same way do business in the State, through an agent, without being found in the State and therefore without being suable there.

Upon this principle some earlier cases held that a corporation could not be found, and therefore could not be sued, outside the State which chartered it.20 And this 17 Stafford v. American Mills Co., 13 R. I. 310.

18 Keystone Driller Co. v. Superior Ct., 138 Cal. 728, 72 Pac. 398.

19 Blue Jacket Consol. Copper Co. v. Scherr, 50 W. Va. 533, 40 S. E. 514. 20 Myers v. Dorr, 13 Blatch. 22, Fed. Cas. No. 9,988; Hume v. Pittsburgh, C. & S. L. R. R., 8 Biss. 31, Fed. Cas. No. 6,865; Middlebrooks v. Springfield Fire Ins. Co., 14 Conn. 301 (semble); Peckham v. North Par. in Haverhill, 16 Pick. (Mass.) 274, 286; Sullivan v. La Cross & M. S. P. Co., 10 Minn. 386; Moulin v. Trenton M. L. & F. Ins. Co., 24 N. J. 222; McQueen v. Middletown Mfg. Co., 16 Johns. (N. Y.) 5; Hall v. Vermont & M. R. R.,

continued to be held in Massachusetts until altered by statute.21

This condition of things proved in time quite inconvenient, and some way was necessary of bringing action against a foreign corporation in a State where it did business and incurred obligations. The simpler method of reaching this result is to make it a condition of a corporation doing business in a foreign State that it should submit to the courts of that State. This is a perfectly proper course to adopt,22 and is a common statutory provision. The effect of it is to subject a foreign corporation which does business in the State to the jurisdiction of the State courts, either as garnishee 23 or as defendant.24 In the leading case on this point Mr. Justice Curtis said: "A corporation created by Indiana can transact business in Ohio only with the consent, express or implied, of the latter State. This consent may be accompanied by such conditions as Ohio may think fit to impose; and these conditions must be deemed valid and effectual by other States, and by this court, provided they are not repugnant to the Constitution or laws of the United States, or inconsistent with those rules of public law which secure the jurisdiction and authority of each State from encroachment by all others, or that principle of natural justice which forbids condemnation without opportunity for defence. In this instance, one of the conditions imposed by Ohio was, in effect, that the agent 28 Vt. 401. See Aldrich v. Anchor Coal Co., 24 Ore. 32, 32 Pac. 756, 41 A. S. R. 831.

21 Danforth v. Penny, 3 Met. (Mass.) 564; Gold v. Housatonic R. R., 1 Gray (Mass.), 424; Andrews v. Mich. C. R. R., 99 Mass. 534, 97 A. D. 51; Larkin v. Wilson, 106 Mass. 120; Desper v. Cont. Water Meter Co., 137 Mass. 252; and to the same effect, Boston Electric Co. v. Electric Gas Lighting Co., 23 Fed. 838. But see Hayden v. Androscoggin Mills, 1 Fed. 93. 22 Infra, § 117.

23 Dittenhoefer v. Cœur d'Alene Clothing Co., 4 Wash. 519, 30 Pac. 660. 24 Lafayette Ins. Co. v. French, 18 How. 404, 15 L. ed. 451; Ex parte Schollenberger, 96 U. S. 369, 24 L. ed. 853; Diamond P. G. Co. v. Minneapolis M. F. Ins. Co., 55 Fed. 27; Reyer v. Odd Fellows' F. A. Assoc., 157 Mass. 367, 32 N. E. 469, 34 A. S. R. 288; Gibbs v. Queen Ins. Co., 63 N. Y. 114, 20 A. R. 513.

who should reside in Ohio and enter into contracts of insurance there in behalf of the foreign corporation, should also be deemed its agent to receive service of process in suits founded on such contracts. We find nothing in this provision either unreasonable in itself, or in conflict with any principle of public law. . . . We consider this foreign corporation, entering into contracts made and to be performed in Ohio, was under an obligation to attend, by its duly authorized attorney, on the courts of that State, in suits founded on such contracts, whereof notice should be given by due process of law, served on the agent of the corporation resident in Ohio, and qualified by the law of Ohio and the presumed assent of the corporation to receive and act on such notice. . . . We limit our decision to the case of a corporation acting in a State foreign to its creation, under a law of that State which recognized its existence, for the purposes of making contracts there and being sued on them, through notice to its contracting agents. The case of natural persons, and of other foreign corporations, is attended with other considerations, which might or might not distinguish it; upon this we give no opinion." 25

Since, then, a State might impose such a condition upon a corporation as a condition of doing business within its borders, it was at last decided that a State statute providing for service of process upon foreign corporations was the imposition of such a condition, and that a judgment obtained under this statute against a foreign corporation was valid if the corporation had an agent and did business in the State and not otherwise.26 And a statute providing for service of process on corporations generally, without excepting foreign corporations, might now be regarded as imposing the condition. This is often effected by requiring the foreign corporation to appoint an attorney upon whom service of process may be had. Such appointment is a submission of the corporation to the jurisdiction of the courts of the State. Where this has

25 Layfayette Ins. Co. v. French, supra.

26 St. Clair v. Cox, 106 U. S. 350, 27 L. ed. 222.