plaintiff's pleading shows that the transaction is one of interstate commerce, the statute does not apply, and compliance need not be alleged.5 255. Failure of plaintiff to comply with statute set up by defendant. Failure of the foreign corporation to comply with the terms of the statute is therefore a matter to be set up by the defendant; and the question must accordingly be raised in the defendant's plea,54 and cannot be raised by a demurrer or equivalent motion,55 unless (by the practice of some States) the defect appears on the face of the complaint.56 Therefore if noncompliance is not set up in defense it is waived.57 The defence in some States must be set up by a plea in abatement; 58 in most jurisdictions it may be set up in an answer or plea in bar, but it may be set up in a plea in abatement or special plea.50 In order to be sufficient, the plea must set out 53 Brin v. Wachusetts Shirt Co., (Tex. Civ. App.) 43 S. W. 295. 54 Gull River Lumber Co. v. Keefe, 6 Dak. 160, 41 N. W. 743; Standard S. M. Co. v. Frame, 2 Pen. (Del.) 430, 48 Atl. 188; Coppedge v. M. K. Goetz Brewing Co., 67 Kan. 851, 73 Pac. 908; Thomas v. Remington Paper Co., 67 Kan. 599, 73 Pac. 908; Savage Mfg. Co. v. Armstrong, 17 Me. 34; Barrett V. Mead, 10 All. (Mass.) 337; Langworthy v. Garding, 74 Minn. 325, 77 N. W. 207; St. George Vineyard Co. v. Fritz, 48 App. Div. 233, 62 N. Y. S. 775; Fuller & Co. v. Schrenk, 58 App. Div. 222, 68 N, Y. S. 781; International Soc. v. Dennis, 76 App. Div. 327, 78 N. Y. S. 497; Nicholl v. Clark, 13 Misc. 128, 34 N. Y. S. 159; O'Reilly, S. & F. Co. v. Greene, 18 Misc. 423, 41 N. Y. S. 1056. 55 Henderson v. J. B. Brown Co., 125 Ala. 566, 28 So. 79; Aultman & Taylor Co. v. Mead, 22 Ky. L. Rep. 1189, 60 S. W. 294; American H. S. S. Co. v. O'Rourke, 23 Mont. 530, 59 Pac. 910; O'Reilly S. & F. Co. v. Greene, 18 Misc. 423, 41 N. Y. S. 1056; G. Ober & Sons Co. v. Blalock, 40 S. C. 31, 18 S. E. 264. 56 Henderson v. J. B. Brown Co., 125 Ala. 566, 28 So. 79 (semble); Charles Roome Parmele Co. v. Haas, 171 N. Y. 579, 64 N. E. 440. 57 Charles Roome Parmele Co. v. Haas, 171 N. Y. 579, 64 N. E. 440; American Typefounders Co. v. Conner, 6 Misc. 39, 26 N. Y. S. 742. 58 Savage Mfg. Co. v. Armstrong, 17 Me. 34. 59 Dundee M. T. & I. Co. v. Nixon, 95 Ala. 318, 10 So. 311; Standard S. M. Co. v. France, 2 Pen. (Del.) 430, 48 Atl. 188; Am. H. S. S. Co. v. O'Rourke, 23 Mont. 530, 59 Pac. 910; Northern Assur. Co. v. Borgelt, (Neb.) 93 N. W. the facts proving non-compliance, not a legal conclusion, as that the corporation has not filed a "duly-authenticated copy" of its charter.60 Since compliance with the statutes was not necessary unless the business was done in the State, the plea must contain an allegation to that effect; since in the absence of such an allegation the contract will be presumed to have been made legally outside the State.61 § 256. Proof of compliance. When the fact of compliance has been raised by the pleadings it may be proved by certificate issued by the competent State officer showing the fact.62 It has been held that the burden of proving compliance, when it is denied in the answer, is upon the corporation; 63 though it is more in accordance with the general principles of procedure to require the defendant, since he must allege the non-compliance affirmatively, to prove it. And it has also been held that the burden of proof is on the defendant.64 It is sometimes held that the defendant is estopped to set up non-compliance because of his dealings with the corporation;65 as where he is a mortgagor and the foreign corporation mortgagee.66 226; Charles Roome Parmele Co. v. Haas, 171 N. Y. 579, 64 N. E. 440; Campbell P. P. & M. Co. v. Herring, 139 Pa. 473, 20 Atl. 1061 (semble); Acme Mercan. Agency v. Rochford, 10 S. D. 203, 72 N. W. 466, 65 A. S. R. 714. 60 Gull River Lumber Co. v. Keefe, 6 Dak. 160, 41 N. W. 743. 61 Collier v. Davis, 94 Ala. 456, 10 So. 86; Thomas v. Remington Paper Co., 67 Kan. 599, 73 Pac. 909; Zion C. M. Ass. v. Mayo, 22 Mont. 100, 55 Pac. 915; Jung Brewing Co. v. Levisy, (Tenn. Ch.) 37 S. W. 889. 62 Washington N. B. L. & I. Assoc. v. Stanley, 38 Ore. 319, 63 Pac. 489, 84 A. S. R. 793, 58 L. R. A. 816. 63 Washington C. M. I. Co. v. Chamberlin, 16 Gray (Mass.), 165; and see Dundee M. T. & I. Co. v. Nixon, 95 Ala. 318, 10 So. 311; John A. Roebling's Sons Co. v. Belden, 26 App. Div. 624, 49 N. Y. S. 933. 64 Coppedge v. M. K. Goetz Brewing Co., 67 Kan. 851, 73 Pac. 908. 65 Washburn Mill Co. v. Bartlett, 3 N. D. 138, 54 N. W. 544; Rathbone, Sard & Co. v. Frost, 9 Wash. 162, 39 Pac. 298; La France Fire Engine Co. v. Mt. Vernon, 9 Wash. 142, 37 Pac. 287. 66 Spinney v. Miller, 114 Iowa 210, 86 N. W. 317, 89 A. S. R. 351. $257. Proof of incorporation. If the defendant wishes to raise the point that the plaintiff is not legally incorporated, he must do so by a plea.67 a plea.67 Upon such a plea the plaintiff proves a prima facie case by showing its existence as a de facto corporation; 68 which it does by showing a copy of its charter, if it was incorporated by a special act of the legislature, together with corporate acts done under the charter; or if it was incorporated under a general law, by proving the statute, and the certificate of the proper State officer purporting to be issued in accordance with it.70 In one case the general statute does not seem to have been proved; " but this cannot properly be omitted. 71 69 It is usually provided by statute that where a certified copy of the charter of a foreign corporation is filed with the Secretary of State, a copy of it shall be accepted as prima facie evidence of incorporation; and this would probably be the law without express statutory provision to that effect.72 A person dealing with a foreign corporation as such will be estopped to allege that it is not a corporation; 73 if the facts which give rise to the estoppel appear in the previous pleadings, the corporation may take advantage of the estoppel on demurrer, otherwise it must allege the facts giving rise to the estoppel in a replication.74 67 Oregonian Ry. v. Oregon Ry. & Nav. Co., 22 Fed. 245, 10 Sawy. 470. 68 Cozzens v. Chicago H. P. B. Co., 166 Ill. 213, 46 N. E. 788; Barrett v. Mead, 10 All. (Mass.) 337. 69 Lancaster Sav. Bank v. Elwell, 17 Wash. 446, 49 Pac. 1070. 70 Savage v. Russell & Co., 84 Ala. 103, 4 So. 235; Cozzens v. Chicago H. P. B. Co., 166 Ill. 213, 46 N. E. 788; Barrett v. Mead, 10 All. (Mass.) 337; Anglo A. L. M. & A. Co. v. Dyar, 181 Mass. 593, 64 N. E. 416. 71 United States Vinegar Co. v. Schlegel, 67 Hun, 356, 22 N. Y. S. 407. 72 Knoxville Nursery Co. v. Com., 21 Ky. L. Rep. 1483, 55 S. W. 691; Com. v. Corkery, 175 Mass. 460, 56 N. E. 711; Knapp, Burrell & Co. v. Strand, 4 Wash. 686, 30 Pac. 1063. 73 Greenville v. Greenville Waterworks Co., 125 Ala. 625, 27 So. 764. 74 Oregonian Ry. v. Oregon Ry. & Nav. Co., 22 Fed. 245, 10 Sawy. 470. CHAPTER XI. SUITS AGAINST CORPORATIONS. 261. Foreign corporation cannot | be sued without its consent. 262. Theory of suit on ground of natural justice. 263. Theory of suit on ground of 264. Foreign corporation may be conditional admission. 267. Failure to comply with the statute and appoint agent. 268. Service on the designated agent only. 269. Statute must be exactly followed. 270. Service on agent temporarily in the State. 271. What agents may be served. 272. Officer of the corporation. 273. Managing agent. 275. Agent of railroad or steam- 276. Agent of insurance company. 277. Agent of newspaper company. 278. Agent under the English practice. 279. Jurisdiction dependent on corporation doing business in State. 280. Jurisdiction extends to all causes of action. 281. Withdrawal of authority to 282. Appearance in the suit. 286. Statute of limitations. § 261. Foreign corporation cannot be sued without its consent. Though there is no legal difficulty in permitting a foreign corporation to sue, it is much more difficult to obtain jurisdiction over such a corporation in order to subject it to suit. A court can acquire jurisdiction over a defendant in order to subject him to its orders only by personal service, by his consent, or by his allegiance. Since the domicil of a corporation and its nationality as well can be referred only to the State of charter,' it is impossible to obtain jurisdiction over 1 Ante, § 71. a foreign corporation on the last ground. But it is equally impossible to serve process personally on a foreign corporation. An ordinary agent does not carry with him the personality of the corporation; he is like the agent of a private individual, and jurisdiction cannot be obtained over an absent individual by serving process on his agent. It follows that there is no way of suing a foreign corporation without its consent to the suit.3 § 262. Theory of suit on ground of natural justice. But this doctrine, though technically sound, seems inherently unjust. "This doctrine of the exemption of a corporation from suit in a State other than that of its creation was the cause of much inconvenience, and often of manifest injustice. The great increase in the number of corporations of late years, and the immense extent of their business, only made this inconvenience and injustice more frequent and marked. Whilst the theoretical and legal view, that the domicil of a corporation is only in the State where it is created, was admitted, it was perceived that when a foreign corporation sent its officers and agents into other States and opened offices, and carried on its business there, it was, in effect, as much represented by them there as in the State of its creation. As it was protected by the laws of those States, allowed to carry on its business within their borders, and to sue in their courts, it seemed only right that it should be held responsible in those courts to obligations and liabilities there incurred.” 4 A few courts, influenced by this seeming injustice, held a foreign corporation suable.5 "If we recognize their existence 2 Service by publication is therefore ineffectual to bind the corporation personally, King v. Sullivan, 93 Ga. 621, 20 S. E. 76. 3 Middlebrooks v. Springfield F. I. Co., 14 Conn. 301; Peckham v. North Parish, 16 Pick. (Mass.) 274 (semble); Moulin v. Trenton M. L. & F. Ins. Co., 24 N. J. L. 222; McQueen v. Middleton Mfg. Co., 16 Johns. (N. Y.) 5. 4 Field, J., in St. Clair v. Cox, 106 U. S. 350, 27 L. ed. 222. 5 St. Louis P. I. Co. v. Cohen, 9 Mo. 416 (semble); Libbey v. Hodgdon, 9 N. H. 394. |