If we admit

for the one purpose, we must also for the other. and vindicate their rights, even-handed justice requires that we also enforce their liabilities; and not send our citizens to a foreign jurisdiction in quest of redress for injuries committed here." 6

The answer to this argument, is, of course, that it is only because the State wills it that the foreign corporation can do business and sue. The State permits this, as a matter of grace; but having so permitted it, the State cannot now demand a consideration for its gift. If the State chooses to forbid the corporation these privileges, it may do so; the law no more requires the State to favor the corporation than permits it to enforce an illegal jurisdiction over it.

$263. Theory of suit on ground of presence.

Another ground on which jurisdiction has been exercised over a foreign corporation against its will is that a corporation is present and may be found and personally served with process where its agents are doing business. "A corporation being an artificial being, can act only through agents, and only through them can be reached, and process must, therefore, be served upon them. In the State where a corporation is formed it is not difficult to ascertain who are authorized to represent and act for it. Its charter or the statutes of the State will indicate in whose hands the control and management of its affairs are placed. Directors are readily found, as also the officers appointed by them to manage its business. But the moment the boundary of the State is passed difficulties arise; it is not so easy to determine who represent the corporation there, and under what circumstances service on them will bind it.

"All that there is in the legal residence of a corporation in the State of its creation consists in the fact that by its laws the corporators are associated together and allowed to exercise

• Wilcox, J., in Libbey v. Hodgdon, supra.

as a body certain functions, with a right of succession in its members. Its officers and agents constitute all that is visible of its existence; and they may be authorized to act for it without as well as within the State. There would seem, therefore, to be no sound reason why, to the extent of their agency, they should not be equally deemed to represent it in the States for which they are respectively appointed when it is called to legal responsibility for their transactions. The case is unlike that of suits against individuals. They can act by themselves, and upon them process can be directly served, but a corporation can only act and be reached through agents. Serving process on its agents in other States, for matters within the sphere of their agency, is, in effect, serving process on it as much so as if such agents resided in the State where it was created." 7

This doctrine appears to have been accepted in a few American jurisdictions, where on the ground expressed it was held that a foreign corporation was subject to the jurisdiction of the courts by service on its agents within the State. And it is the accepted doctrine in England and the English colonies, where it is said that a foreign corporation doing business within the country is there resident." The statute permitting service of process on certain officers or agents of a corporation applies to "corporations established by foreign law which are carrying on business, and therefore are resident, in England, and are submitting themselves to the laws of this country.

I think that when a foreign corporation, established by foreign law, sets up an office in England and carries on one of the principal parts of its business here, it ought to be considered as resident in Engand, and be treated as if it were established by English law." 10

The objection to this doctrine is, in the words of Mr. Jus

7 Field, J., in St. Clair v. Cox, 106 U. S. 350, 27 L. ed. 222.

8 Day v. Essex County Bank, 13 Vt. 97.

9 Ante, §§ 74, 76

10 Cotton, L. J., in Haggin v. Comptoir d'Escompte, 23 Q. B. Div. (C. A.) 519, 522. See, to the same effect, Nutter v. Messageries Maritimes, 54 L. J. Q. B. 527.

tice Field, that "the principle that a corporation must dwell in the place of its creation, and cannot, as said by Mr. Chief Justice Taney, migrate to another sovereignty, coupled with the doctrine that an officer of the corporation does not carry his functions with him when he leaves his State, prevented the maintenance of personal actions against it." " It is true that a corporation can be sued only by service of process upon some person acting for it; but that does not prove that it may always be sued in that way. Individuals may represent corporations in two ways; as ordinary agents, or as officers. The relation of an ordinary agent to a corporation is the same as that of an agent to an individual principal; and it is impossible to obtain personal service on a principal by service on his agent. Therefore service on an ordinary agent of a corporation is not personal service on the corporation. An officer bears a different relation to the corporation; he is legally a part of it, and service which reaches an officer in his official capacity reaches the corporation itself, and is personal service upon it. But an officer of a corporation cannot carry his official capacity outside the State of charter; he may represent the corporation abroad as agent, but not as officer. Consequently service of process on even an officer of a foreign corporation is not personal service on the corporation.

It is true that a domestic corporation may be properly sued after service on an ordinary agent. But in the State of charter it is not essential to have personal service on a corporation in order to obtain jurisdiction over it. The State has jurisdiction from the fact of its creation of the corporation; service of process is not necessary to obtain jurisdiction, but only to carry out due process of law by giving to the corporation sufficient notice of the suit and opportunity to be heard, since a State's law of procedure "must not encroach upon that principle of natural justice which requires notice of a suit to a party before he can be bound by it." 12

11 St. Clair v. Cox, 106 U. S. 350, 27 L. ed. 222.

12 Field, J., in St. Clair v. Cox, supra.

§ 264. Foreign corporation may be sued by its consent.

But the difficulty is by no means impossible of solution. Since a foreign corporation may do business in a State only by permission of the State, and that permission may be given on condition, the consent of the corporation to be sued may be imposed as a condition; and having obtained jurisdiction over the corporation by its consent, the State may then make such regulations for the service of process as it pleases, provided they conform to the constitutional requirement of due process of law.13 And no contract between the corporation and the party with whom it deals will be allowed to exempt the corporation from suit.14

"A corporation of one State cannot do business in another State without the latter's consent, express or implied, and that consent may be accompanied with such conditions as it may think proper to impose. . . . The State may, therefore, impose as a condition upon which a foreign corporation shall be permitted to do business within her limits, that it shall stipulate that in any litigation arising out of its transactions in the State, it will accept as sufficient the service of process on its agents or persons specially designated; and the condition would be eminently fit and just. And such condition and stipulation may be implied as well as expressed. If a State permits a foreign corporation to do business within her limits, and at the same time provides that in suits against it for business there done, process shall be served upon its agents, the provision is to be deemed a condition of the permission; and corporations that subsequently do business in the State are to be deemed to assent to such condition as fully as though they had specially authorized their agents to receive service of the process. Such condition must not, however, encroach

13 Lafayette Ins. Co. v. French, 18 How. 404, 15 L. ed. 899; Fireman's Ins. Co. v. Thompson, 155 Ill. 204, 40 N. E. 488; Reyer v. Odd Fellows' Acc. Assoc., 157 Mass. 367, 32 N. E. 469, 34 A. S. R. 288; Compagnie Générale Transatlantique v. Law, [1899] A. C. 431. See ante, § 74. 14 Field v. Eastern B. & L. Assoc., (Ia.) 90 N. W. 717.

upon that principle of natural justice which requires notice of a suit to a party before he can be bound by it. It must be reasonable, and the service provided for should be only upon such agents as may be properly deemed representatives of the foreign corporation." 15

Service on the designated agent, of course, confers jurisdiction over the corporation, and the judgment is everywhere binding on the corporation to the full extent to which it would be binding on an individual defendant legally served.16

§ 265. Appointment of agent to receive service of process.

In almost every State a foreign corporation is now required to give its express consent to be sued, by appointing an agent for service of process upon it, before doing business in the State. The statute may require the selection of some real agent of the corporation, or the acceptance of a State official for that purpose. In either case the designation of the agent is of course an express consent to be sued. And after a foreign corporation has complied with the law, the State may alter the law and provide for service on other persons. This is not in conflict with the Constitution of the United States.18

In naming an agent, it is enough to designate him by his office; as "the general manager in Denver"; 19 "the superintendent of insurance." 20 It seems that if a partnership is named, either partner or a surviving or continuing partner could be served.21

15 Field, J., in St. Clair v. Cox, 106 U. S. 350, 27 L. ed. 222.

16 Weymouth v. Washington G. & A. R. R., 1 McAr. (Dist. Colum.) 19; Green v. Equit. Mut. Life & Endow. Ass., 105 Iowa, 628, 75 N. W. 635; State v. N. A. Land & Timber Co., 106 La. 621, 31 So. 172; McNichol v. United States M. R. Agency, 74 Mo. 457; Gibbs v. Queen Ins. Co., 63 N. Y. 114, 20 A. R. 513.

17 The statute of each State on this subject will be found in Chapter VII. 18 Connecticut M. L. I. Co. v. Spratly, 99 Tenn. 322, 42 S. W. 145, 44

L. R. A. 442; affirmed, 172 U. S. 602, 43 L. ed. 569.

19 Goodwin v. Colorado M. I. Co., 110 U. S. 1, 28 L. ed. 47.

20 Lafflin v. Travelers' Ins. Co., 121 N. Y. 713, 24 N. E. 934.

21 Gibson v. Manufacturers' F. & M. I. Co., 144 Mass. 81, 10 N. E. 729.