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act through an agent depends upon the permission of the State in which the act is to be done. Whether that permission is to be given is often said to be a question of comity, not of law; as if there were a distinction between them. This is, however, not the case. There is no discretion in the court; it must discover and enforce the law applicable to the case. "It is not the comity of the courts, but the comity of the nation which is administered, and ascertained in the same way and guided by the same reasoning by which all other principles of municipal law are ascertained and guided." 13 Nor is it an important thing to say that the State though not the court recognizes the right of a foreign corporation to act as such by comity. This means no more than that the State is not obliged to recognize the right, but may refuse or cease to do so; but the same thing is true as to all parts of the law. In ceasing to recognize the right of the foreign corporation the State would only be altering its law, in the same way that it may alter any other part of its law. The term "comity," then, adds nothing to our knowledge of the subject and may be disregarded. Our task is to discover the principles actually adopted by the common law upon this subject.

105. The corporation of another State is a foreign corporation. For the purposes at least of our discussion the States of the American Union are foreign to one another; and a corporation chartered by one of those States is therefore a foreign corporation in each of the others.

Under a State statute defining a foreign corporation as one created "under the laws of any other State, government, or country" a corporation created by the United States is a foreign corporation; 14 and this would seem to be true at common law. In Pennsylvania, however, it has been held that a railroad company, chartered by Congress and operating

13 Story, Conflict of Laws, 37.

14 Daly v. National L. I. Co., 64 Ind. 1; Cook v. State Nat. Bank, 52 N. Y. 96, 11 A. R. 667.

entirely outside Pennsylvania, was not a foreign corporation; because "the general government in its relation to that of the several States cannot be considered a foreign government in the ordinary acceptation of that term." 15

106. What is recognized as a corporation.

Whether a body formed by association of individuals and chartered by the State will be regarded in a foreign State as a corporation depends upon the laws of both States. The legal effect which such association and charter gives depends upon the law of the State of charter; but whether the body thus formed, and having such legal qualities, will in the foreign State be deemed a corporation depends upon the law of the latter State. The fact that it is called a corporation in the State of its charter is not decisive; since in the foreign State the sort of body created, however named, may not be a corporation. On this point Mr. Justice Miller said: "The several acts of Parliament we have mentioned, expressly declare that they shall not be held to constitute the body a corporation. But whatever may be the effect of such declaration in the courts of that country, it cannot alter the essential nature of a corporation, or prevent the courts of another jurisdiction from inquiring into its true character, whenever that may come in issue. It appears to have been the policy of the English law to attach certain consequences to incorporated bodies, which rendered it desirable that such associations as these should not become technically corporations. Among these, it would seem from the provisions of these Acts, is the exemption from individual liability of the shareholder for the contracts of the corporation. Such local policy can have no place here in determining whether an association, whose powers are ascertained and its privileges conferred by law, is an incorporated body. . . . We have no hesitation

15 Com. v. Texas & P. R. R., 98 Pa. 90. Acc. Eby v. Northern Pac. R. R., 13 Phila. 144, 6 Wk. Notes Cas. 385 (Pa.).

in holding that, as the law of corporations is understood in this country, the association is a corporation." 16

In accordance with this principle an English joint-stock company has been held by the Supreme Court of the United States to be a corporation,17 though the Supreme Court of Massachusetts with greater accuracy described it as something between a corporation and a partnership, subject, however, to the law as to taxation which governed corporations.18 A joint-stock company of New York, however, has none of the qualities of a corporation, and is treated in another State merely as a partnership.19

The government of another State is recognized as a corporation. Thus the United States is in New York recognized as a corporation, and by the statute of that State 20 a foreign corporation.21

§ 107. A corporation may exercise all its powers abroad.

It may be said generally that if not forbidden by the State in which it acts, a corporation may exercise its powers as well abroad as at home. No special grant of power is necessary for this purpose; and though in a few States such special grant is made, the statute conferring it must be regarded as a re-enactment of the common law. A foreign corporation permitted to do so by the State in which it acts may therefore carry on business,22 acquire and transfer prop

see,

16 Liverpool Ins. Co. v. Massachusetts, 10 Wall. 566, 576, 19 L. ed. 1029; also, Ingate v. Austrian Lloyds Co., 27 L. J. C. P. 323.

17 Liverpool Ins. Co. v. Massachusetts, 10 Wall. 566, 19 L. ed. 1029, Bradley, J., dissenting.

18 Oliver v. Liverpool & London Life & Fire Ins. Co., 100 Mass. 531; cf. Lockwood v. Town of Weston, 61 Conn. 211, 23 Atl. 9.

19 Taft v. Ward, 106 Mass. 518; Bodwell v. Eastman, 106 Mass. 525; Gott v. Dinsmore, 111 Mass. 45; Taft v. Warde, 111 Mass. 518; Boston & A. R. R. v. Pearson, 128 Mass. 445. See General Steam Nav. Co. v. Guillou, 13 L. J. Ex. 168, to the same effect.

20 Post, § 173.

21 In re Merriam, 141 N. Y. 479, 36 N. E. 505.

22 See Chapter VIII.

23

erty, and in short do any act which may be done through an agent or servant. As a corollary of its power to act, it possesses also the power to incur obligations as a result of its acts; a foreign corporation may, therefore, become bound by a contract and become liable for a tort.

§ 108. A foreign corporation may contract.

A foreign corporation, not expressly forbidden to do so by law, may make any contract which its charter gives it power to make.24 And like an individual it may not only sue for breach of contract, but in the proper case may have specific performance of a contract in its favor,25 or be subject to a decree for specific performance of its contract in favor of the other party.26 But it may of course, as has been seen, make only such contracts as its charter gives it power to make; a corporation chartered to carry on the insurance business cannot engage in banking. And while it is being wound up in legally contract in a foreign State,

its own State it cannot

23 See Chapter IX.

24 Bank of Augusta v. Earle, 13 Pet. 519, 10 L. ed. 274; Tombigbee R. R. v. Kneeland, 4 How. 16, 11 L. ed. 855; Hall v. Tanner & D. Engine Co., 91 Ala. 363, 8 So. 348; Union B. R. R. v. E. T. & G. R. R., 14 Ga. 327, 341; Wood H. H. Mining Co. v. King, 45 Ga. 34; Bank of Washtenaw v. Montgomery, 3 Ill. 422; Stevens v. Pratt, 101 Ill. 206; Commercial Union Ass. Co. v. Scammon, 102 Ill. 46; Dodge v. Council Bluffs, 57 Ia. 560, 10 N. W. 886; A., T. & S. F. R. R. v. Fletcher, 35 Kan. 236, 10 Pac. 596; Kansas City B. & I. Co. v. Wyandotte County, 35 Kan. 557, 11 Pac. 360; Lathrop v. Commercial Bank, 8 Dana (Ky.), 114, 33 A. D. 481; Frazier v. Willcox, 4 Rob. (La.) 517; Wellersburg & W. Plank Road Co. v. Young, 12 Md. 476, 487; Kennebec Co. v. Augusta Ins. & Banking Co., 6 Gray (Mass.), 204; Conn. Mut. L. Ins. Co. v. Albert, 39 Mo. 181; Ferguson v. Soden, 111 Mo. 208, 19 S. W. 727, 33 A. S. R. 512; Mumford v. Amer. L. I. & T. Co., 4 N. Y. 463, 482; Bard v. Poole, 12 N. Y. 495; Floyd v. Nat'l Loan & Invest. Co., 49 W. Va. 327, 38 S. E. 654, 54 L. R. A. 536, 87 A. S. R. 805; Canadian Pac. Ry. v. W. U. T. Co., 17 Can. 151; Conn. & P. R. R. R. v. Comstock, 1 Rev. Leg. (Quebec) 589; Howe Machine Co. v. Walker, 35 Up. Can. Q. B. 37; Coquillard v. Hunter, 36 Up. Can. Q. B. 316.

25 Diamond Match Co. v. Roeber, 106 N. Y. 473, 13 N. E. 419, 60 A. R. 464.

26 Wellersburg & W. P. R. Co. v. Young, 12 Md. 476.

27 Blair v. Perpetual Ins. Co., 10 Mo. 559, 47 A. D. 129,

and will therefore, at suit of a creditor, be restrained from acting.28

In Michigan it is provided by statute 29 that an act which a domestic corporation has no right to do, cannot be the consideration of a contract by a foreign corporation.30 But under a similar Massachusetts statute, it was held that though no corporation could be organized for manufacturing and selling liquors, yet corporations may be formed to sell liquors. Consequently, a foreign corporation chartered to manufacture and sell liquors could sell them within the State, and such sale was good consideration for a mortgage.31

31

$109. A foreign corporation may become liable for Tort.

A foreign corporation is liable like any foreigner for torts committed within the jurisdiction.32 And it may not only be sued for damages for its torts, but it may be restrained by equity by means of an injunction, as for instance from infringing a trade name,33 or from committing a nuisance.34 The law by which a tortious act is judged is the law of the place where the corporation acts, not the law of the State of charter or of the forum.35

"Whatever civil right of action by the law of the place attached to, or was given by, or arose from the act of killing in such case, would doubtless be transitory and follow the person, and might be enforced in this State. But if the law of the place gave no civil right of action for such cause, none of course would exist anywhere else at the time; and if the party causing the death never returned to this State, he could

28 Douglas v. A. M. L. Ins. Co., 25 Grant (Up. Can.), Ch. 379.

29 Mich. Comp. L. § 6543.

30 Chapman v. Colby, 47 Mich. 46, 10 N. W. 74.

31 Enterprise Brewing Co. v. Grime, 173 Mass. 252, 53 N. E. 855. 32 Austin v. N. Y. & E. R. R., 25 N. J. L. 381 (personal injury by negligence); People v. Central R. R. of N. J., 48 Barb. (N. Y.) 478 (trespass to land)

33 Gray v. Taper Sleeve Pulley Works, 16 Fed. 436.

34 Seattle Gas & Electric Co. v. Citizens L. & P. Co., 123 Fed. 588.

35 Whitford v. Panama R. R., 23 N. Y. 465.

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