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assets the court would be astute to equalize the payments, and take care that no French creditors should come in and receive anything till the English creditors had been paid a proportionate amount. But, subject to that, which is for the purpose of doing what is equal and just to all the creditors, I know of no law under which the English creditors are to be preferred to foreigners.'" 22

22 Chase, J., in Bank Comrs. v. Granite State Provident Assoc., 70 N. H. 557, 49 Atl. 124.

CHAPTER XXXIV.

THE DISSOLUTION OF A FOREIGN CORPORATION.

§ 821. A foreign corporation cannot | § 825. Property after dissolution.

be dissolved.

822. Business within the jurisdic

tion may be wound up.

823. Dissolution by State of char

ter.

824. Suit after dissolution.

826. Suit by or against statutory
representatives.

827. Incomplete dissolution.
828. Extension of power by foreign
State.

§ 821. A foreign corporation cannot be dissolved.

As we have already seen,' no court can declare a forfeiture of franchise or a dissolution of a corporation except the courts of the jurisdiction which created it. A winding-up order, therefore, which purports to forfeit the franchises of a foreign corporation or to dissolve it is to that extent void. And as the phrase "winding-up" commonly involves the idea of dissolution, it is often said that a court cannot wind up a foreign corporation.2

§ 822. Business within the jurisdiction may be wound up.

A winding-up order, however, does not necessarily include a dissolution of the corporation. Such an order involves three things:

1. A cessation from active business by the corporation. 2. The appointment of a liquidator.

1 Ante, § 302.

2 Murray v. Vanderbilt, 39 Barb. (N. Y.) 140. See Hallenborg v. Greene, 73 N. Y. S. 403, 66 App. Div. 590; Dreyfuss v. Seale, 41 N. Y. S. 875, 18 Misc. 551. And see Lewis v. Am. Naval Stores Co., 119 Fed. 391.

3 Allen v. Hanson, 18 Can. 667; Smith v. St. L. Mut. Life Ins. Co., 3 Tenn. Ch. 502.

3. The intervention of the court to prevent one creditor from obtaining by legal proceedings any advantage over another. Now there is no difficulty in the way of doing all this to a foreign corporation so far as its business within that jurisdiction is concerned. So where an appropriate statute is found broad enough in its terms to include a foreign corporation the court will wind up a foreign corporation. So in England under the Companies Act every corporation, foreign or domestic, which does business in England is subject to a winding-up order, even though it may also be wound up in the State which chartered it. But a foreign company which has no office and does no business in England (except the mere making of contracts through an agent) cannot there be wound up.

8823. Dissolution by State of charter.

The corporation may of course be dissolved by its own State, and such dissolution will be effectual everywhere, even though all its assets are situated and all its business is done. abroad. It is not dissolved by an assignment for the benefit of creditors, or by insolvency, or even by the appointment of a receiver. 10 And the legality of an alleged dissolu

4 Bank Comrs. v. Granite St. Prov. Ass., 70 N. H. 557, 49 Atl. 24; Popper v. Supreme Council, 61 App. Div. 405, 70 N. Y. S. 637; Hallenborg v. Greene, 66 App. Div. 590, 73 N. Y. S. 403; Smith v. St. L. Mut. Life Ins. Co., 3 Tenn. Ch. 502; Allen v. Hanson, 18 Can. 667.

In re Dendre Valley Ry. v. Canal Co., 19 L. J. Ch. 474; In re Madrid & Valencia Ry., 19 L. J. Ch. 260; In re Commercial Bank of India, L. R. 6 Eq. 517; In re Matherson, 27 Ch. D. 225; In re Commercial Bank of So. Australia, 33 Ch. D. 174.

In re Lloyd Generale Italiano, 29 Ch. D. 219.

7 Princess of Reuss v. Bos, L. R. 5 H. L. 176; In re Tumacocori Mining Co., L. R. 17 Eq. 534; In re General Company for the Promotion of Land Credit, L. R. 5 Ch. 363.

Barclay v. Talman, 4 Edw. (N. Y.) 123.

• Willitts v. Waite, 25 N. Y. 577.

10 Société Fonciere v. Milliken, 135 U. S. 304, 34 L. ed. 208; Life Assoc. of America v. Fassett, 102 Ill. 315; Dunlap v. Paterson F. I. Co., 12 Hun (N. Y.), 627 (aff. 74 N. Y. 145); Sigua Iron Co. v. Brown, 33 Misc. 50, 68 N. Y. S. 141; Plummer v. Lake Superior N. C. Co., 10 Ont. Pr. R. 527.

tion may be inquired into. Thus where it is alleged that a foreign corporation had been dissolved by a decree of the president without an act of the legislature, his power so to dissolve it is a matter for consideration,11 and where the dissolution is alleged to have been decreed by a court of the State of charter, the jurisdiction of such court to dissolve it must be established.12 This, being a matter of foreign law, must be established by evidence in the trial court; the jurisdiction cannot be presumed.13 "It is not an inevitable inference which the law draws conclusively from the entry of a judgment by a court of general jurisdiction that the court which entered it had jurisdiction of the cause, or to give all the relief which by its decree it purported to give. Nor is there any presumption in Massachusetts that the statutes of New York give power to any court of New York to dissolve a corporation.14 Therefore the precise question is whether it was an inevitable inference from the agreed facts that the New York court had jurisdiction to decree a dissolution of the corporation on May 4, 1900, and then did make a decree not only purporting to dissolve the construction company, but which in law and fact actually then extinguished totally its life. In our opinion no such inevitable inference is drawn by the law from the facts stated, and therefore neither the lower court, nor this court upon the appeal, was precluded from finding that the judgment entered against the construction company after the date of the decree purporting to dissolve it was a valid judgment."

8824. Suit after dissolution.

" 15

If a corporation has been legally dissolved by the State of

11 Lea v. American A. & P. C. Co., 3 Abb. Pr. (N. s.) (N. Y.) 1.

12 Folger v. Columbian Ins. Co., 99 Mass. 267, 96 A. D. 747; Hammond

v. National Life Assoc., 31 Misc. 182, 65 N. Y. S. 407.

13 Olds v. City T. S. D. & S. Co., 185 Mass. 500, 70 N. E. 1022.

14 Citing Kelley v. Kelley, 161 Mass. 111, 112, 36 N. E. 837, 25 L. R. A.

806, 42 A. S. R. 380.

15 Barker, J., in Olds v. City T. S. D. & S. Co., supra.

charter, so that it is no longer in existence, a judgment obtained against it is of no more effect than a judgment against a dead man. The corporation being dissolved, no person, legal or natural, is bound by the judgment, even if the action was pending at the time of the dissolution. In the case of a deceased natural person, a representative is appointed by a court of probate, and the suit is brought or continued against such representative. There is no power to appoint a representative of a deceased foreign corporation, and if such representative has not been named by the State of charter, a common-law action could not be brought or continued. Yet it is clearly within the power of a State to apply the assets within its jurisdiction to the payment of the debts of the dissolved corporation, and a legal method of doing it could probably be found.

"We are not ready to concede that, after the dissolution of a foreign corporation by the sovereignty by which it was created, its creditors in this State cannot in some way, by proceedings in equity or otherwise, take advantage of the former corporate life, through our own courts, so far as to avail themselves of assets in this State." 17

A creditor's bill in equity making all stockholders of the dissolved corporation parties and serving by publication those who could not be reached personally would probably lie. To this effect was the language of the Supreme Court of Illinois: "But, if it be conceded it is proven this bank has forfeited its franchises under the laws of Rhode Island, the obligation of its contracts survives, and this action may be maintained on the ground it is a proceeding against the property of the bank, not in the hands of a bona fide purchaser, to enforce

16 Marion Phosphate Co. v. Perry, 74 Fed. 425, 33 L. R. A. 252; Fitts v. National Life Assoc., 130 Ala. 413, 30 So. 374; Sturges v. Vanderbilt, 73 N. Y. 384; Mechants' L. & T. Co. v. Clair, 107 N. Y. 663, 114 N. E. 414 (affirming 36 Hun, 362); In re Stewart, 39 Misc. 275, 79 N. Y. S. 525.

17 Barker, J., in Olds v. City T. S. D. & S. Co., 185 Mass. 500, 70 N. E. 1022.

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