If service is allowed on one officer or agent only if another cannot be found, a return of service on the former must expressly recite that the latter could not be found.23

If the return is insufficient, it may be amended under order of court.24

§ 295. Venue.

The question of venue is one of purely local practice; the statutes regulating it have not been collected, and only the most general principles concerning it will here be stated.

The facts on which venue depends need not be stated in the plaintiff's pleading.25 Where an agent has been designated to receive service of process, that agent may be served anywhere in the State, without reference to the county in which the venue is laid. 26

If by statute a foreign corporation is liable to suit in the county in which it does business, it can be sued in no other; 27 though if there is no such statute a foreign corporation, not being a resident, may be sued in any county.28

$296. Conduct of the suit.

Though service may be made on a State official, the conduct

23 Southern Exp. Co. v. Hunt, 54 Miss. 664; Brooks v. Syndicate, 24 Nev. 311, 53 Pac. 597; Glines v. Supreme Sitting, 20 N. Y. S. 275, 22 N. Y. Civ. Pro. Rep. 437; affirmed 66 Hun, 634, 21 N. Y. S. 543; Vitolo v. Bee Publishing Co., 66 App. Div. 582, 73 N. Y. S. 273. See Comet C. M. Co. v.

Frost, 15 Colo. 310, 25 Pac. 506.

24 Frick Co. v. Wright, 23 Tex. Civ. App. 340, 55 S. W. 608.

25 Hilleary v. Skookum R. H. G. Co., 4 Misc. 127, 53 N. Y. St. Rep. 206, 23 N. Y. S. 1016; Empire C. & C. Co. v. Hull C. & C. Co., 51 W. Va. 474, 41 S. E. 917. See, however, Bradstreet Co. v. Gill, 72 Tex. 115, 9 S. W. 753, 2 L. R. A. 405, 13 A. S. R. 768.

26 People v. Justices, 11 N. Y. S. 773, 33 N. Y. St. Rep. 147; Sattler v. Aultman & Taylor M. Co., 6 Pa. Dist. R. 419; Gardner Shingle Co. v. Nicla, 25 Pa. Co. Ct. 303.

27 Angerhoefer v. Bradstreet Co., 22 Fed. 305; Sullivan v. Sullivan Timber Co., 103 Ala. 371, 15 So. 941, 25 L. R. A. 543; Easley v. New Zealand Ins. Co., 4 Ida. 205, 38 Pac. 405; State v. Western U. T. Co., 48 La. Ann. 81, 18

So. 910; St. Louis, A. & T. Ry. v. Whitley, 77 Tex. 126.

28 Thomas v. Placerville G. Q. M. Co., 65 Cal. 600.

of the suit must be left in the hands of the corporation; and the statutes provide for notice of service to be given to the corporation. Any local agent authorized to do so may employ counsel and file an answer. 29 Thus an officer of the corporation may verify a pleading for a corporation,30 and so may an attorney; 31 and it need not be stated why the verification is not made by the party.32 A managing director is an officer within a statute allowing verification by officers.33

§ 297. Presumptions and proof.

Jurisdiction must be proved, and will not be presumed; and, therefore, in a State where a non-resident cannot sue a foreign corporation on a cause of action arising in the State if no evidence is given as to the residence of the plaintiff or the place where the cause of action arose, judgment must be given for the defendant.34 If evidence is introduced and leaves the question doubtful, it must be left to the jury.35

But legal action must be presumed rather than illegal. It must, therefore, be presumed in the absence of evidence that a foreign corporation has complied with the law and appointed a State officer its agent to receive service.36 And an agent who acted in the transaction out of which the suit arises will be presumed still to be an agent of the company for the purpose of service.37

29 Dougan v. Sun Fire Office, 39 Mo. App. 676.

30 Robinson v. Equador Development Co., 32 Misc. 106, 65 N. Y. S. 427. 31 American Audit Co. v. Indus. Feder. of Am., 84 App. Div. 304, 82 N. Y. S. 642.

32 Robinson v. Ecuador Devel. Co., 32 Misc. 106, 65 N. Y. S. 427.

33 Best v. Brit. & Am. Mtg. Co., 131 N. C. 70, 42 S. E. 456.

34 Progressive Power Co. v. Wrought-Iron Bridge Co., 14 Misc. 23, 35 N. Y. S. 130; Snow-Church & Co. v. Snow-Church Surety Co., 80 App. Div. 40, 80 N. Y. S. 512.

35 Gundlin v. Hamburg A. P. Co., 8 Misc. 291, 28 N. Y. S 572.

36 American S. & W. Co. v. Raleigh C. & C. Co., 10 Pa. Dist. R. 285. 37 Funk v. Anglo-American Ins. Co., 27 Fed. 336.

TITLE IV.

OF THE INTERNAL AFFAIRS OF A FOREIGN CORPO

RATION.

CHAPTER XIII.

JURISDICTION OVER THE INTERNAL AFFAIRS OF A FOREIGN CORPORATION.

300. Defect of jurisdiction over the | § 305. Management regulated by

§ 300. Defect of jurisdiction over the internal affairs of a foreign corporation.

In dealing with the internal affairs of a foreign corporation the courts may have complete jurisdiction over the parties; both the corporation itself and its officers may be subject to the jurisdiction of the courts: the lack of jurisdiction which may be claimed, therefore, is of the somewhat vague thing called jurisdiction of the subject-matter. This phrase in this connection indicates that a court which has entire power to issue orders refrains from doing so for some reason. connected with the nature of the contention.

A court may decline to act from a lack of power to enforce its decrees, or because the court of some other jurisdiction is better entitled to settle the dispute. An example of the first is the refusal of a court of equity to decree the doing of an act in a foreign country; of the latter, the refusal of a court of law to permit an action for trespass on foreign land when the title is put in issue.

In the case of a foreign corporation, both these reasons exist to prevent a regulation of its internal affairs by a foreign court. But these considerations, it will be noticed, apply only in the case of an exercise of discretionary jurisdiction; the granting of an equitable remedy or of a prerogative writ. An ordinary personal action at law will not usually involve a determination of internal affairs of a corporation; though in an exceptional case it might do so.

§ 301. Existence of a corporation determined by State of charter. Since a corporation is such because it is chartered by the law of some State, and only so far as that State makes it a corporation, it follows that when a corporation is acting as such de facto in its own State the validity of its organization is to be tested by the law of the country creating it. As the Supreme Court of Illinois said of a corporation chartered in Indiana, "The authority to inquire, by quo warranto, whether, there being a corporation de facto, it is in all respects a legal and valid corporation, belongs to the State of Indiana alone." 2 So the Supreme Court of Alabama held that it would not question the existence of a corporation created by the laws of Georgia during the civil war, its organization having been recognized by the Supreme Court of Georgia.3 And so a decision by the Supreme Court of Alabama that a corporation of that State has no power to issue additional stock is

1 Oregonian Co. v. Ore. Ry. & Nav. Co., 27 Fed. 277; Lancaster v. Amsterdam Improvement Co., 140 N. Y. 576, 24 L. R. A. 322; Grant v. Henry Clay Coal Co., 80 Pa. 208.

2 Hudson v. Green Hill Seminary, 113 Ill. 618.

3 Importing & Exporting Co. v. Locke, 50 Ala. 332.

4

binding. A corporation must, therefore, be considered as still in existence until dissolved by the State of its creation. If dissolved by the de facto government of the country creating it, such dissolution will be recognized elsewhere.5

But when a corporation pleads a decree of dissolution, the court will inquire whether or not the decree was issued by competent authority. So the Supreme Court of New York refused to recognize a decree of the "supreme director" of Nicaragua, in the absence of proof that the "supreme director" had power to utter the decree. Similarly the Supreme Court of Massachusetts decided that the Supreme Court of New York was without jurisdiction in dissolving a corporation collaterally in a suit brought by a private individual."

Where the same corporation has received several charters from different States, any State may declare a forfeiture of the charter granted by that State. This, of course, would not affect the charters granted by other States.

If it appears that the persons claiming to be a corporation never in fact accepted the charter, any court may declare them to be no corporation. It was so held by the Supreme Court of Maryland. Certain individuals claimed to have been incorporated under the laws of North Carolina. The court refused to recognize the corporation on proof that all the meetings of the so-called corporation had been held in Maryland. Similarly in Massachusetts persons claiming to have been incorporated under the laws of New Hampshire were held to be no corporation, it appearing that they had not complied with the requirements of the law.10

4 Clark v. Turner, 73 Ga. 1.

5 Remington v. Samana Bay Co., 140 Mass. 494, 5 N. E. 292; McLaren v. Pennington, 1 Paige (N. Y.), 102.

• Lea v. Amer. A. & P. Canal Co., 3 Abb. Pr. (N. s.) (N. Y.) 1 (semble).

7 Folger v. Columbian Ins. Co., 99 Mass. 267, 96 A. D. 747.

8 Hart v. Boston, H. & E. R. R., 40 Conn. 524, 539.

Smith v. Silver Valley Min. Co., 64 Md. 85, 54 A. R. 760; acc. Duke

v. Taylor, 27 Fla. 64, 19 So. 192, 31 L. R. A. 484.

10 Montgomery v. Forbes, 148 Mass. 249, 19 N. E. 342.