ceived by "each fire, marine, and fire and marine insurance company incorporated or associated under the laws of any government or State other than one of the United States," has been held by the Supreme Court of the United States to be applicable to a foreign joint-stock association, created by deed of settlement in England, under which and certain acts of Parliament it has: 1, a distinctive artificial name by which it can make contracts; 2, power to sue and be sued in the name of its officers; 3, a statutory existence distinct from its members who may sue and be sued by it; and, 4, perpetuity by the transfer of its shares, so as to secure a succession of membership.'

Liverpool Ins. Co. v. Massachusetts, 10 Wall. 566.

CHAPTER III.

ACTIONS BY AND AGAINST FOREIGN COMPANIES.

Article I.

Actions by Foreign Companies.

II.

III.

IV.

V.

VI.

VII.

Actions against Foreign Companies at Common Law. Actions against Foreign Companies under the Statutes. 1. Nature and Extent of the Jurisdiction.

2. Appointment of Agent to Receive Service of Process.

3. Sufficiency of the Service.

Jurisdiction of Subject-matter.

Jurisdiction by Consent of Parties.

"Non-residence" of Foreign Companies

Proceedings in Rem and Quasi in Rem.

VIII. Foreign Company as Garnishee.

IX.

Some Matters of Practice.

ARTICLE I.-ACTIONS BY FOREIGN COMPANIES.

SECTION.

172. Right of Foreign Corporation to Maintain Suits.

173. Bringing Suit is not "Doing Business."

174. Action for Libel.

175. Validity of Organization.

176. Assignee of Insolvent Foreign Company.

177. Foreclosure of Mortgage on Real Estate.

178. Failure to Comply with Statutory Conditions.

§ 172. Right of Foreign Corporation to Maintain Suits. The right of a foreign company to maintain suits in the courts of the local jurisdiction rests solely on the doctrine of comity. Not being a citizen, it cannot sustain its right to do so, by invoking the

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declaration of the Federal constitution that "citizens of each State shall be entitled to all privileges and immunities of citizens in the several States. The earliest recognition by courts of justice of the legal capacity of foreign corporations is found in those instances in which they were first permitted to maintain suits in the domestic courts. In 1614 Lord Chief Justice Coke granted a prohibition in the King's Bench to restrain the prosecution of a suit in the English Court of Admiralty by the Spanish embassador in his official capacity, against two English merchants for cutting and carrying away timber from the King of Spain's dominions in Brazil, and based his ruling, not on any incapacity of the embassador or of the King of Spain, who, of course, was a foreign corporation sole, to maintain such an action, but upon the fact that the wrong complained of was done on land, and that consequently the court of admiralty could have no jurisdiction of it, since its jurisdiction was confined to matters occurring super altum mare. Again, a hundred years later, in 1729, the Common Pleas entertained a suit by the Dutch West India Company of Amsterdam for money borrowed, which by the articles was to be repaid at Amsterdam, and the judgment of that court was affirmed in the King's Bench and the House of Lords." And the English Court of Chancery in 1791 entertained a bill in equity by a native prince of one of the provinces of India, the Nabob of the Carnatic, and therefore a corporation sole, against the East India Company,

1 Const. U. S. art. 4, § 2.

2 Spanish Embassador v. Buntish, Bulst. pt. 2, p. 322.

2

3 Henriques v. Dutch West India Co., 2 Ld. Raym. 1532, 1535, 8. C., Strange, 612.

to whom the revenues of his territories had been pledged for debt, for an accounting.' Again, in 1828 the House of Lords sustained a bill in equity filed in the name of the King of Spain, as trustee for certain Spanish beneficiaries, against the depositor and depositaries of a certain trust fund." Full recognition was at an early period very generally accorded to this doctrine by the American courts.' And now it is a matter of such common occurrence, for a corporation created in one jurisdiction to appear as a suitor in the courts of another, that it is familiar to every practitioner.*

§ 173. Bringing Suit is not "Doing Business.”— We have seen that bringing suit is not "doing business" within the meaning of the statutes prescribing conditions upon which foreign companies may be permitted to do business in the State, and that therefore such company is not precluded from maintaining its suit because it has not complied with such conditions. The purpose of such statutes is not a withdrawal of all comity, except upon the prescribed conditions, but to prevent a foreign corporation from acquiring a domicile in the State with

Nabob of the Carnatic v. East India Co., 1 Ves. Jr. 371.

2 Hullett v. King of Spain, 2 Bligh. (N. S.) 31.

3 Silver Lake Bank v. North (1820), 4 Johns. Ch. 370; Bank of Marietta v. Pindall (1824), 2 Rand. 465; Portsmouth Livery Co. v. Watson (1813), 10 Mass. 96; New York Fire Ins. Co. v. Ely (1825), 5 Com. 560; Gospel Soc. v. Wheeler (1814), 2 Gall. 105; Gospel Soc. v. New Haven (1823), 8 Wheat. 464; Bank of Augusta v. Earle (1839),13 Pet. 519. See also Bank of U. S. v. Haskins (1799), 1 Johns. Cas. 132; Brown v. Minis (1821), 1 McCord, 80; Stewart v. U. S. Ins. Co. (1839), 9 Watts, 126; British Am. Land Co. v. Ames (1843), 6 Metc. (Mass.) 391; Lewis v. Bank of Kentucky (1843), 12 Ohio, 132; Lathrop v. Commercial Bank (1839), 8 Dana (Ky.), 114; Frazier v. Wilcox (1843), 4 Rob. (La.) 517; Bank of Washtenaw v. Montgomery (1840), 3 Ill. 422; Guaga Iron Co. v. Dawson (1836), 4 Blackf. 202.

4 Diamond Match Co. v. Roeber, 106 N. Y. 473, 13 N. E. Rep. 419; Direct U. S. Cable Co. v. Dominion Tel. Co., 84 N. Y. 153.

out first taking a position where its own contracts can be enforced against it, in the local courts.'

§ 174. Action for Libel.-Whether the rule of comity would go so far as to uphold the right of a foreign corporation to maintain a suit for libel, alleged to have been committed by a resident of the jurisdiction, is a question that was suggested but not decided by the Supreme Court of Illinois in Hahnemannian Life Ins. Co. v. Beebe." The court held in that case that the facts alleged did not establish a libel. As matter of principle, no reason is perceived why a foreign corporation should not have a suit for libel committed within the jurisdiction as well as for any other cause of action, and it was so held in another case by the Illinois Appellate Court."

§ 175.

Validity of Organization.-A foreign corporation will not be precluded from maintaining a suit, on the ground that it is an illegal organization, simply because there is reason to suppose that the incorporators had an unlawful purpose in view, when they procured the charter. Where a Georgia corporation was created in 1863, under a general incorporation law, for the ostensible purpose of foreign trade, with a corporate life of thirty years, the Alabama court declined to assume that its only purpose was blockade running."

§ 176. Assignee of Insolvent Foreign Company.— It has been held that, in the event of the insolvency

1 Ante, § 72; Fuller & Johnson Mfg. Co. v. Foster (Dak.), 30 N. W Rep. 166; Powder River Cattle Co. v. Custer County, 9 Mont. 145, 22 Pac. Rep. 383; St. Louis, etc. Ry. Co. v. Fire Assn. Co., 55 Ark. 165, 18 S. W. Rep. 43.

2 48 Ill. 86.

3 Jewelers' Merc. Agency v. Douglass, 35 Ill. App. 627.

4 Importing and Exporting Co. v. Locke, 50 Ala. 332.