been done a provision endorsed on shares of stock that any action brought against the corporation by shareholders should be in the charter State, must be void.27

29

In many jurisdictions, however, the same result has been reached without recourse to such elaborate reasoning. It is decided that a corporation is found and may be served with process where it does business, if there is any provision of law by which service of process can be made; in other words, a foreign corporation doing business in a State is suable just as a domestic corporation would be.28 How far these decisions are influenced by such considerations as have been mentioned it is impossible to say. Some of the cases are put upon the ground that a corporation is resident in a foreign State in which it has a principal office; 20 though this is an objectionable ground on which to rest the doctrine, as has been seen, since a corporation, like an individual, can reside in but one place, and that of course must be the place of incorporation. In these jurisdictions the power to sue a corporation as resident is confined to cases where it has an office of its own for doing business, with a resident manager. "I think that when a foreign corporation, established by foreign law, sets up an office in England and carries on one of the principal parts of its business here, it ought to be considered as resident in England, and be treated as if it were established by English law." 30 On the other hand, if it merely acts through an

27 Savage v. Peoples' B. L. & S. Assoc., 45 W. Va. 275, 31 S. E. 991. 28 Newby v. Van Oppen, L. R. 7 Q. B. 293; Haggin v. Comptoir d'Escompte, 23 Q. B. D. 519; Wilson Packing Co. v. Hunter, 8 Biss. 429, Fed. Cas. No. 17,852; Blackburn v. Selma M. & M. R. R., 2 Flip. 525, Fed. Cas. No. 1,467; Hayden v. Androscoggin Mills, 1 Fed. 93; Williams v. East Tenn. Va. & Ga. Ry., 90 Ga. 519, 16 S. E. 303; Moshassuck Felt Mill v. Blanding, 17 R. I. 297, 21 Atl. 538; Newfelder v. German Amer. Ins. Co., 6 Wash. 336, 33 Pac. 870, 36 A. S. R. 166, 22 L. R. A. 287 (as to the law of California).

29 Newby v. Van Oppen, L. R. 7 Q. B. 293 (but see Wright v. Midland Ry., L. R. 8 Ex. 137); Williams v. East Tenn. Va. & Ga. Ry., 90 Ga. 519, 16 S. E. 303; Bank of North America v. Chicago, D. & V. R. R., 82 Ill. 493; Pennsylvania Co. v. Sloan, 1 Bradw. (Ill.) 364.

30 Cotton, L. J., in Haggin v. Comptoir d'Escompte, 23 Q. B. Div. 519.

agent it is not regarded as being so far resident within the State as to be subject to process or to taxation.31 As was said by Sir Gorell Barnes in The Princesse Clémentine: 32 "The distinction drawn by the cases is between an agent and an officer of the corporation. . . . In a popular sense, no doubt, the business of the defendant corporation is carried on by the corporation in England, but I do not think that this is so in the eye of the law. It seems to me that the business carried on in this country is that of an agency for the defendant corporation." To obtain jurisdiction in such States the corporation must be acting of itself through a branch establishment, not merely through an agent.

The Supreme Court of the United States takes the more defensible view. Thus Mr. Justice Davis said: "The declaration avers that the plaintiff in error (the defendant in the court below) is a corporation created by an Act of the Legislature of the State of New York, located in Aberdeen, Mississippi, and doing business there under the laws of the State. This, in legal effect, is an averment that the defendant was a citizen of New York because a corporation can have no legal existence outside of the sovereignty by which it was created.33 Its place of residence is there, and can be nowhere else. Unlike a natural person, it cannot change its domicil at will, and although it may be permitted to transact business where its charter does not operate, it cannot on that account acquire a residence there." 34 And Mr. Chief Justice Waite has expressed the same view. "A corporation cannot change its

See to the same effect, Nutter v. Messageries Maritimes, 54 L. J. Q. B. 527; Lambe v. Dewhurst & Son, 16 Quebec S. C. 326; Bowden v. Imperial M. & F. Ins. Co., 2 New So. Wales St. Rep. (Law) 257.

31 Tharsis Sulphur & Copper Co. v. Soc. des Métaux, 58 L. J. Q. B. 435; Macdougall v. Schofield Woolen Co., 16 Quebec S. C. 411; Glanville v. J. B. Lippincott Co., 17 New So. Wales W. N. 74; Baker v. Walker Sons & Bartholemew, 18 New So. Wales W. N. 282.

32 [1897] P. 18, 21.

33 Ohio & Miss. R. R. v. Wheeler, 1 Black, 286, 17 L. ed. 130; Louisville,

C. & C. R. R. v. Letson, 2 How. 497, 11 L. ed. 353.

34 Insurance Co. v. Francis, 11 Wall. 210, 216, 20 L. ed. 77.

residence or its citizenship. It can have its legal home only at the place where it is located by or under the authority of its charter; but it may by its agents transact business anywhere, unless prohibited by its charter or excluded by local laws. Under such circumstances, it seems clear that it may, for the purpose of securing business, consent to be 'found' away from home, for the purposes of suit as to matters growing out of its transactions." 35 "By doing business away from their legal residence they do not change their citizenship, but simply extend the field of their operations. They reside at home, but do business abroad." 36

§ 75. Habitancy under the Judiciary Act.

The Federal Judiciary Act of 1887 (as amended in 1888) provided that suits brought in the Federal courts because of the different citizenship of the parties should be brought in a district of which one party was an inhabitant. The judges of at least three circuits held, under this act, that a corporation was an inhabitant of any district in which it did business.37 But the weight of authority in the lower Federal courts was opposed to this, holding that a foreign corporation could inhabit no other State than the State of its charter,38 even if the greater part of its business was done in the foreign State,

35 Ex parte Schollenberger, 96 U. S. 369, 378, 24 L. ed. 853. 36 R. R. v. Koontz, 104 U. S. 5, 11, 26 L. ed. 643.

37 Zambrino v. Galveston, H. & S. A. Ry., 38 Fed. 449; Riddle v. New York, L. E. & W. R. R., 39 Fed. 290; Hirschl v. J. I. Case T. M. Co., 42 Fed. 803; Miller v. Eastern Ore. Gold Min. Co., 45 Fed. 345; United States v. So. Pac. R. R., 49 Fed. 297; East Tenn., V. & G. R. R. v. Atlanta & F. R. R., 49 Fed. 608, 15 L. R. A. 109; Gilbert v. New Zealand Ins. Co., 49 Fed. 884, 15 L. R. A. 125.

38 Fales v. Chicago, M. & S. P. Ry., 32 Fed. 673; Halstead v. Manning, 34 Fed. 565; Denton v. Internat. Co., 36 Fed. 1; Walker v. St. Louis F. E. Mfg. Co., 40 Fed. 1; Bensinger S. A. Cash Reg. Co. v. Nat. Cash Reg. Co., 42 Fed. 81; Henning v. W. U. T. Co., 43 Fed. 97; Myers v. Murray, Nelson & Co., 43 Fed. 695, 11 L. R A. 216; Bostwick v. Amer. Finance Co., 43 Fed. 897; Nat. Typog. Co. v. N. Y. Typog. Co., 44 Fed. 711; Baughman v. Nat. Waterworks Co., 46 Fed. 4; Miller v. Wheeler & Wilson Mfg. Co., 46 Fed. 882; Campbell v. Duluth, S. S. & A. Ry., 50 Fed. 241.

its principal office was there, and its annual election of directors held there; 39 and that one might sue in the Federal court in his own district a foreign corporation doing business there, since they were inhabitants of different States, and one party lived within the district. 40 The Supreme Court finally settled the matter in accordance with these cases, and it is now, therefore, everywhere recognized that a corporation inhabits only the State incorporating it.41

Where the incorporating State is divided into two or more districts it has been suggested that if the corporation does business in two districts it may be regarded as an inhabitant of both.42 These dicta, however, have been overruled. A corporation cannot reside in two places at once, whether those places are separated by a State line or not.43 The corporation is an inhabitant of that part of the State in which the chief office is located.44

§ 76. Residence for purposes of process and suit.

In statutes which are passed to regulate legal process the real distinction between a person called "resident" and a nonresident appears to be the distinction between one who is and one who is not liable to service of process. In such a statute

39 Filli v. Delaware, L. & W. Ry., 37 Fed. 65.

40 Minford v. Old Dominion S. S. Co., 48 Fed. 1; Conn v. Chicago, B. & Q. R. R., 48 Fed. 177.

41 Shaw v. Quincy Mining Co., 145 U. S. 444, 36 L. ed. 768; So. Pac. Co. v. Denton, 146 U. S. 202, 36 L. ed. 942; Empire Coal & Transp. Co. v. Empire Coal & Min. Co., 150 U. S. 159, 37 L. ed. 1037. This section was held not to apply to an alien or to a corporation created by a foreign country. Such a corporation may be sued (as an alien) in any district where it does business. In re Hohorst, 150 U. S. 653, 37 L. ed. 1211.

42 Zambrino v. Galveston, H. & S. A. Ry., 38 Fed. 449; East Tenn. V. & G. R. R. v. Atlanta & F. R. R., 49 Fed. 608, 15 L. R. A. 109; citing several cases in State courts.

43 Galveston, H. & S. A. Ry. v. Gonzales, 151 U. S. 496, 38 L. ed. 248, in which authorities on both sides are collected.

44 See chapter xxxi for a consideration of this question, where a corporation is simultaneously incorporated in different States by the permission of the several legislatures. See Winn v. Wabash R. R. Co., 118 Fed. 55.

a resident means one who can be served with process and sued in the courts. A foreign corporation which is doing business within a State and is therefore subject to the jurisdiction of the courts is regarded in most States as a resident for all purposes connected with legal process. In accordance with this doctrine it is held that a foreign corporation which has a business office in the State cannot be attached as a nonresident; ; 45 and as a resident may be defendant in garnishee process, under an act permitting such process only in case of resident defendants.46 So where an affidavit of defence could be filed only by a resident, it was held that a foreign corporation having its principal office in a county could there file the affidavit.47 And where an appeal from the judgment of a justice of the peace must be taken within ten days by a resident, it was held that a foreign corporation which had a business office and agent within the State must take its appeal within that time.48

În the case of the statute of limitations, however, there is a serious conflict of decision; some important jurisdictions interpreting the statutory exception of "non-residents" or "persons out of the jurisdiction" as applying to all foreign

45 Middough v. S. J. & D. C. R. R., 51 Mo. 520, and cases cited. A fortiori where a foreign corporation has been granted a charter by a State, it is not subject to attachment as a non-resident. Bernhardt v. Brown, 119 N. C. 506, 26 S. E. 162, 36 L. R. A. 402. But in a few jurisdictions it is held that a foreign corporation, though doing business in a State, is subject to attachment as a non-resident. South Carolina R. R. v. Peoples' Sav. Inst., 64 Ga. 18; Beal v. Toby Valley Supply Co., 13 Pa. Co. Ct. 273, 2 Pa. Dist. R. 671; Zucker v. Froment, 5 Pa. Dist. R. 579; Pain's P. S. Co. v. Lincoln P. & S. Co., 19 Pa. Co. Ct. 21; Diener v. Wopsononock Hotel Co., 23 Pa. Co. Ct. 376, 10 Pa. Dist. R. 57; Pierce v. Electric Co., 28 W. N. C. (Pa.) 311; Bank of U. S. v. Merchants' Bank, 1 Rob. Va. 573; Cowardin v. Universal L. I. Co., 32 Grat. (Va) 445. And in some jurisdictions it is held that a foreign corporation may be required as non-resident to file security for costs. J. L. Mott Iron Works v. Faith, 23 Pa. Co. Ct. 665; Alaska S. S. Co. v. Macaulay, 7 Brit. Colum. 338.

46 Bushel v. Commonwealth Ins. Co., 15 S. & R. (Pa.) 173; Pierce v. Electric Co., 28 W. N. C. (Pa.) 311.

47 Bank of North America v. Chicago, D. & V. R. R., 82 III. 493. 48 Harding v. Chicago & A. R. R., 80 Mo. 659.