may sue on a contract made outside the State before it began to do business in the State, though at the time of trial it may be doing business in the State without compliance with the statute.27 Since the foreign corporation itself might sue, its assignee may sue (in a jurisdiction which allows suit by an assignee of a chose in action) on a contract made in another State.28

Even if the foreign corporation had not complied with the statute in the State where it made the contract, and, therefore, could not sue there, it may sue in another State without compliance. The disability to sue will be given no extra-territorial effect.29

§ 250. Contract connected with interstate commerce.

Since a State cannot regulate interstate commerce or put any condition upon its exercise, the statutes regulating doing business by foreign corporations must be interpreted as not applying to interstate commerce. A foreign corporation may therefore bring suit upon a contract which is an act of interstate commerce although it has not complied with the statutory requirements.30

§ 251. Right of action for tort.

The rule is general but not universal that an individual may sue for a foreign committed tort,31 and in the States which allow suit by the individual, it would seem to follow that there

27 Stern v. Childs, 26 Misc. 419, 56 N. Y. S. 192; Whitley v. General Electric Co., (Tex. Civ. App.) 45 S. W. 959.

28 O'Reilly S. & F. Co. v. Greene, 17 Misc. 302, 40 N. Y. S. 360. 29 Allegheny Co. v. Allen, (N. J. L.) 55 Atl. 724.

30 Zion C. M. Ass. v. Mayo, 22 Mont. 100, 55 Pac. 915; Texas & P. Ry. v. Davis, 93 Tex. 378, 55 S. W. 562; Gale Mfg. Co. v. Finkelstein, 22 Tex. Civ. App. 241, 54 S. W. 619; Pasteur Vaccine Co. v. Burky, (Tex. Civ. App.) 54 S. W. 804; Tex. and Pac. Ry. v. Davis, (Tex. Civ. App.) 54 S. W. 381; · Lane & Bodley Co. v. City E. L. & W. W. Co., (Tex. Civ. App.) 72 S. W. 425. 31 Raphael v. Verelst, 2 Wm. Blackstone, 1055. In New York, however, a non-resident may not be sued for a tort committed abroad. Gardner v. Thomas, 14 Johns. 134, 7 A. D. 445.

may be suit by a foreign corporation for tort against it abroad. At any rate, even if a foreign corporation is not allowed to sue in contract at all, or in tort for tort committed against it abroad, it will be allowed to sue for tort committed against it within the jurisdiction.32 A quare in Illinois whether a foreign corporation can sue for libel 33 appears to be ill-founded.

§ 252. Protection of property.

The failure of a corporation to comply with the statutory requirements does not put its property outside the protection of the law, and though it may not sue on a contract it may take legal steps to protect or recover its property. Thus a foreign corporation without compliance with the statute may bring replevin for its property,34 or trespass to try title; 35 it may maintain a bill in equity to set aside a deed of its land as fraudulent,36 or sue for trespass on its property,37 for trover,38 or in case for negligent destruction of it.39 So it may file a claim for a mechanic's lien,40 though it cannot bring suit to enforce the lien before compliance, since that requires the establishment of its contract.

So a foreign corporation without complying with the statute may sue to recover from its agent money of the corporation which he has collected in the course of the business; 41 and

32 Delaware & A. T. & T. Co. v. Pensauken, 116 Fed. 910; St. Louis, A. & T. Ry. v. Fire Ass., 60 Ark. 325, 30 S. W. 350; Portsmouth Livery Co. v. Watson, 10 Mass. 91; Joseph Schlitz Brew. Co. v. Ester, 33 N. Y. S. 143, 86 Hun, 22.

33 Hahnemannian L. I. Co. v. Beebe, 48 Ill. 87, 95 A. D. 519.

34 Smith v. Little, 67 Ind. 549; American Typefounders Co. v. Conner,

6 Misc. 391, 26 N. Y. S. 742, 56 N. Y. St. R. 398.

35 Eskridge v. Louisville T. Co., (Tex. Civ. App.) 69 S. W. 987.

36 Joseph Schlitz Brewing Co. v. Ester, 86 Hun, 22, 33 N. Y. S. 143.

87 Delaware & A. T. & T. Co. v. Pensauken, 116 Fed. 910.

88 Portsmouth Livery Co. v. Watson, 10 Mass. 91.

39 St. Louis, A. & T. Ry. v. Fire Ass., 60 Ark. 325, 30 S. W. 350.

40 Neuchatel Asphalte Co. v. New York, 155 N. Y. 373, 49 N. E. 1043;

In re Simonds Furnace Co., 30 Misc. 209, 61 N. Y. S. 974; Huttig Bros.

Mfg. Co. v. Denny Hotel Co., 6 Wash. 122, 32 Pac. 1073.

41 In re Hovey's Estate, 198 Pa. 385, 48 Atl. 311.

if an agent of such a corporation is prosecuted for embezzling its property, it is no defence that the corporation obtained the property by doing business in violation of the statute.42 So in an action on an agent's bond, the obligor cannot set up in defence the illegality of the business.43

§ 253. Right to cross-action and appeal.

If a corporation has been sued within the jurisdiction and has submitted to suit it will have the right of cross-action, whether it could have sued originally or not.44 And it further must have the right to appeal from the decision against it in such an action.45

§ 254. Right to sue and compliance with statutes not alleged by plaintiff.

Disability to sue, though it may exist, is never presumed; and mere ability to sue need not be set out by the plaintiff in his pleadings. Unless the disability of the plaintiff to maintain his suit is apparent on the face of his pleadings, it is not the subject of demurrer, but of a plea. A foreign corporation therefore need not in its declaration set out terms of its charter which confer on it the capacity to sue.46

Upon this principle it is generally held that a foreign corporation need not set out in his first pleading such compliance with the statute as is necessary to give it the right to sue.47

42 People v. Hawkins, 106 Mich. 479, 64 N. W. 736; State v. O'Brien, 94 Tenn. 79, 28 S. W. 311, 26 L. R. A. 252.

43 Rockford Ins. Co. v. Rogers, 9 Colo. App. 121, 47 Pac. 848.

44 J. R. Alsing Co. v. New England Quartz & Spar Co., 73 N. Y. S. 347,

66 App. Div. 473; Swift & Co. v. Platte, (Kan.) 72 Pac. 271.

45 Swift & Co. v. Platte, (Kan.) 72 Pac. 271.

46 Smith v.

Weed S. M. Co., 26 Oh. St. 562; Taylor v. Bank of Alexandria, 5 Leigh (Va.), 471.

47 Nelms v. Edinburgh A. L. M. Co., 92 Ala. 157, 9 So. 141 (explaining and modifying on his point Farrior v. N. E. M. Security Co., 88 Ala. 275, 7 So. 200; Christian v. Mortgage Co., 89 Ala. 198, 7 So. 427; and see Ginn v. New England M. S. Co., 92 Ala. 135, 8 So. 388); St. Louis, A. & T. Ry. v. Fire Ass. of Phila., 55 Ark. 163, 18 S. W. 43; American B. H. & O.

In the earlier New York cases it was held that on the affidavit on which a motion for attachment or arrest was based compliance with the statute must be shown.43 "Ordinarily jurisdiction in a court of general jurisdiction need not be alleged; but where the provisions of the law are that the court shall have jurisdiction of a certain class of cases only where certain facts exist, it is necessary to allege, in order to show that a cause of action exists, that the facts essential to such jurisdiction are present. This rule that no presumptions are to be relied upon to sustain an attachment is fortified by the principle that in sustaining attachments strict construction of the statutes and the affidavits is required in favor of the person against whose property the attachment is obtained." 49

But this view was finally overthrown in the Court of Appeals, in an opinion in which Judge O'Brien expressed with great clearness and force the argument for the prevailing doctrine.50

"Before these statutes were passed, the plaintiff could maintain this action under general provisions of law containing no restrictions whatever of the character referred to. The statutes in themselves give no right of action, and are not essential elements of the cause of action stated in the complaint. They are mere revenue regulations, compliance with which is made necessary in order to acquire the right to do business here and

S. S. M. Co. v. Moore, 2 Dak. 281, 8 N. W. 131; Langworthy v. Garding, 74 Minn. 325, 77 N. W. 207; Zion Coop. Mercan. Ass. v. Mayo, 22 Mont. 100, 55 Pac. 915 (semble); American H. S. S. Co. v. O'Rourke, 23 Mont. 530, 59 Pac. 910; Nicholl v. Clark, 34 N. Y. S. 159, 13 Misc. 128; O'Reilly, Skelly & Fogarty Co. v. Greene, 41 N. Y. S. 1056, 18 Misc. 423; Lukens Iron & Steel Co. v. Payne, 43 N. Y. S. 376, 13 App. Div. 11; Charles Roome Parmele Co. v. Haas, 171 N. Y. 579, 64 N. E. 440; Keokuk F. I. Co. v. Kingsland & D. M. Co., 5 Okla. 32, 47 Pac. 484; Acme Mercan. Agency v. Rochford, 10 S. D. 203, 72 N. W. 466, 65 A. S. R. 714; Nickells v. People's Bldg., Loan & Sav. Ass., 93 Va. 380, 25 S. W. 8.

48 Sawyer Lumber Co. v. Bussell, 84 Hun, 114, 31 N. Y. S. 1107; Reedy Elevator Co. v. American Grocery Co., 24 Misc. 678, 53 N. Y. S. 989.

40 Gildersleeve, J., in Reedy Elevator Co. v. American Grocery Co., supra. 50 Charles Roome Parmele Co. v. Haas, 171 N. Y. 579, 64 N. E. 440.

to enforce causes of action in our courts. They may possibly be matters of defence, but not essential to be stated as part of the cause of action or right to sue. When a foreign corporation brings a suit in the courts of this state and states a good cause of action in the complaint, it will be assumed that it is rightfully in the state and properly in court until the contrary is made to appear. The question is one merely of pleading or procedure, and it does not go to the substance of the plaintiff's claim.

'Compliance with this statute was no part of the plaintiff's case, which was to be affirmatively stated. It has been generally held that such conditions are the same, and fulfill the same office, as a proviso in a statute the enacting clause of which gives the right of action and the subsequent provisions modify or limit that right. The plaintiff in such a case may rely upon the enacting clause, and leave it to the defendant to plead the proviso or exception. . . . The objection, at most, is one as to the character or capacity of the plaintiff to sue. That objection, if the defect appears upon the face of the complaint, must be taken by demurrer. Code, § 488. If it does not appear upon the face of the complaint, it may be taken by answer (Code, § 498); and if not taken either by demurrer or answer is deemed to have been waived. Code, § 499."

In a few States, however, it is held that compliance with the statute must be stated in the plaintiff's first pleading, since otherwise he cannot bring himself within the jurisdiction of the court.51 But under such statute, failure to allege may be supplied by amendment before final decree; 52 and if the

51 Cumberland Land Co. v. Canter Lumber Co., (Tenn. Ch.) 35 S. W. 886; Taber v. Interstate Bldg. & Loan Ass., 91 Tex. 92, 40 S. W. 954; Huffman v. West. Mtg. & Inv. Co., (Tex. Civ. App.) 36 S. W. 306; Southern B. & L. Ass. v. Skinner, 16 Tex. Civ. App. 475, 42 S. W. 320; Peters v. AnheuserBusch Brew. Ass., (Tex. Civ. App.) 55 S. W. 516; Del. Ins. Co. v. Security Co., (Tex. Civ. App.) 54 S. W. 916; Chapman v. Hallwood Cash Regis. Co., (Tex. Civ. App.) 73 S. W. 969 (Miller v. Goodman, [Tex. Civ. App.] 40 S. W. 743, contra, must be regarded as overruled).

52 Woldert v. Nedderhut P. & P. Co., 18 Tex. Civ. App. 602, 46 S. W. 578.