of the organization and existence of the company.' And where the fact was only collaterally in issue, a similar ruling was made as to evidence of the facts that a company had attempted to organize as a corporation, and had done business as a corporation de facto, and that its certificates of shares recited that it was organized under the laws of that State." § 282. Certificate of Incorporation.—A certificate of incorporation of a foreign company is to be proven in the same way and under the same restrictions as any other foreign documents. If it is a record, it may be proven by an attested copy. Where the certificate of incorporation, upon being issued is delivered to the secretary of the company, it becomes a private writing, in private custody, and cannot be proven by copy, or otherwise than by the production of the original, if in existence. Under a provision of the Maryland Code making it unlawful for a foreign insurance company to do business in the State before filing a copy of its charter with the insurance commissioner, it was held that a plaintiff, in an action against the company, which denied its incorporation, could introduce in evidence a book found in the commissioner's office,-the only one there bearing the defendant's name-containing a document which purported to be certified by its officers as a true copy of its charter and by-laws.*

§ 283. Question for the Jury.-There being a question as to the identity of the corporation suing with the company, of which the incorporation was

2 Barrett v. Mead, 10 Allen, 337; Williams v. Cheney, 3 Gray, 215; Williams v. Bank of Michigan, 7 Wend. 539. See also State v. Carr, 5 N. H. 367.

3 Dundee Mtge., etc., Co. v. Cooper, 26 Fed. Rep. 665.

Metropolitan L. Ins. Co. v. Dempsey, 72 Md. 288, 19 Atl. Rep. 642.

proved, the court held that it was for the jury to say whether or not it was the same.'

§ 284.

Failure to Comply with Local Statutes.

Where the company has failed to comply with the local statute making it a condition, upon which it is permitted to do business in the State, that it shall file a copy of its charter or act of incorporation, it has been held that a party suing such company, is relieved from the necessity of proving the incorporation except by reputation.'

§ 285. by Verdict.-After a verdict in favor of plaintiffs, who sue as a corporation, the court will presume that the fact was conceded or proved on the trial, no exception having been taken on that ground.'

Failure to Prove Corporate Character Cured

§ 286. Production of Books and Papers.-Foreign corporations, equally with domestic companies, are subject to the provisions of the various practice acts, that the books and papers of corporations shall be subject to production in evidence or for inspection, at the instance of the opposing party, in response to a subpoena duces tecum, or an order of court. Of course, if the books in question are within the jurisdiction, the court could compel their production by directing its process to the individuals in whose custody they are at the time. If the books are beyond the jurisdiction, it would seem to be competent, according to a decision of the New York Supreme Court, for a court which has

5

1 National Bank of St. Charles v. De Bernales, 1 Carr. & P. 569.

2 King v.

National M. & E. Co., 4 Mont. 1. See also Hershfield v. Rocky Mt. Bell Tel. Co. (Mont.), 29 Pac. Rep. 883.

3 British Am. Land Co. v. Ames, 6 Metc. (Mass.) 391.

4 New York Code Civ. Proc., § 868.

n re Sykes, 10 Ben. (U. S.) 162.

jurisdiction of the company to compel it by appropriate order to bring the books into the jurisdiction.' This would seem questionable on principle, and in view of the probability of conflicting interests and jurisdictions, such a proceeding would very likely give rise to grave questions. It was held, however, that the production of books and papers kept beyond the jurisdiction could not be compelled by a subpœna duces tecum directed to the vice-president, who was also secretary and treasurer of the company, unless it appeared that they were in his custody at that time. Where it was shown that after being filled up in his office in the State, they were sent to the home office in another State, and kept there, it was held that they were not in his "custody" within the statute."

§ 287. Court will not Permit such Process to be Abused. Applications of this kind, which have, to a considerable extent, taken the place of the equitable proceeding by bill for discovery, are largely addressed to the discretion of the court,' and where the effect of the order, as made, is unnecessarily oppressive, it will be modified on appeal. So an order requiring an Oregon corporation to produce books kept, and in constant use, in its office in that State, before a referee in New York, was modified so as to require the production of sworn copies only of such portions of their contents as related to the subjectmatter mentioned in the order."

§ 288. Judgment by Default.-We have seen that

1 Ervin v. Oregon Ry. & Nav. Co., 22 Hun, 566. Compare Huylar v. Cragin Cattle Co., 40 N. J. Eq. 392, 42 N. J. Eq. 139.

2 In re Sykes, 10 Ben. (U. S.) 162.

3 Gregory v. Chicago, etc. R. Co., 10 Fed. Rep. 529. Ervin v. Oregon Ry. & Nav. Co., 22 Hun, 566.

where a foreign corporation is duly served with process in accordance with the terms of the statute, the court acquires jurisdiction, which authorizes it upon the failure of the company to appear and defend, to render a judgment by default as in the case of any other defendant.' As in other cases, the matter of setting aside the judgment by default and permitting the defendant company to plead, is largely within the discretion of the trial court. It has been held, however, that where the agent of a foreign company fails to inform his principal of the commencement of proceedings, and has no power himself to employ counsel to defend the action, the foreign company must be held to have been negligent in failing to authorize him to take such action, and that a default and judgment against it will not be set aside.' In New Jersey, however, a foreign company which had failed to appear, because advised by counsel in the State of its domicile, that the New Jersey courts had no jurisdiction of it, was nevertheless admitted to plead its defense on the merits after a judgment by default.3

1 Ante, § 190.

2 Walker v. Continental Ins. Co., 2 Utah, 331.

3 National Cond. Milk Co. v. Brandenburgh, 40 N. J. L. 111.

CHAPTER IV.

FEDERAL JURISDICTION

Article I.

II.

III.

IV.

OF FOREIGN CORPORATIONS.

Citizenship of Foreign Companies.

Service of Process Issued by Federal Courts.
Removal of Causes.

State Statutes Requiring Waiver of the Right to Invoke
Federal Jurisdiction.

V. Original Jurisdiction of Supreme Court.

ARTICLE I.-CITIZENSHIP OF FOREIGN COMPANIES.

SECTION.

293. Citizenship of Corporations-The Original Doctrine.

294. Same-The Modern View.

295. Same-Questionable Reasoning.

296. Such Jurisdictional Citizenship not Affected by Removal of Corporate Business.

297. Jurisdiction of Corporations Chartered by Congress.

298. Jurisdiction of Interstate Corporations.

§ 293. 293.

Citizenship of Corporations-The Original Doctrine. The view, originally adopted by the Supreme Court of the United States, as to whether corporations are "citizens," within the provisions of the judiciary act' giving the Federal courts jurisdiction of a suit "between a citizen of the State where it is brought and a citizen of another State,"

Rev. Stat. U. S. § 629.