15. Foreign corporations.

At common law, the right of foreign corporations to sue in a jurisdiction was recognized as founded on the principles of international justice and comity.62 Foreign corporations may be sued, provided effective service can be made upon the corporation or its property;63 but courts refuse to entertain jurisdiction over a foreign corporation in cases where the de

he was appointed, and the principles of comity between nations and states which recognize the judicial decisions of one tribunal as conclusive in another do not apply to such a case, and will not warrant a receiver in bringing an action in a foreign court or jurisdiction.

While, as is thus seen, the courts have generally denied the receiver's extraterritorial right of action as a question of strict right, it has frequently been recognized as a matter of comity. Thus, it has been held that receivers of a foreign corporation, appointed in other states, might sue in New York, in their official capacity, in cases where no detriment would result to citizens of the latter state; the privilege of thus suing being regarded as based rather upon courtesy than upon strict right, and the courts declining to extend their comity so far as to work detriment to citizens of their own state who have been induced to give credit to the foreign corporation." See, however, Parker v. Stoughton Mill Co., 91 Wis. 174, 64 N. W. 751. See, also, on this question, Hale v. Hardon, 95 Fed. 747; Hurd v. City of Elizabeth, 41 N. J. Law, 1; Rogers v. Riley, 80 Fed. 759; Runk v. St. John, 29 Barb. (N. Y.) 585; Hale v. Tyler, 104 Fed. 757; Barley v. Giddings, 15 App. D. C. 427; Commercial Nat. Bank of Columbus v. Motherwell Iron & Steel Co., 95 Tenn. 172, 31 S. W. 1002, 29 L. R. A. 164. It is held that a receiver appointed in one jurisdiction may sue in another to recover real estate, where he claims by a conveyance to him as such receiver, and does not depend alone upon the decree of appointment. Oliver v. Clarke, 106 Fed. 402. See, also, Howarth v. Lombard, 175 Mass. 570, 56 N. E. 888, holding that, if a receiver has a right of property as assignee, he may maintain a suit in a foreign jurisdiction. It is held in Castleman v. Templeman, 87 Md. 546, 40 Atl. 275, that, when a receiver appointed by the court in one state desires to sue in a court of another state, it would be proper practice for him to file a petition setting forth such facts as are sufficient to enable him to do so in the latter court, and asking permission to sue.

62 Story, Eq. Pl. § 55; Bank of Augusta v. Earle, 13 Pet. (U. S.) 519; Bank of Washtenaw v. Montgomery, 2 Scam. (Ill.) 422; Hahnemannian Life Ins. Co. v. Beebe, 48 Ill. 87; Rhodes v. Missouri Savings & Loan Co., 173 Ill. 621, 50 N. E. 998; Cook, Corp. § 757; Walters v. Whitlock. 9 Fla. 86.

68 Cook, Corp. 88 757, 758; Libbey v. Hodgdon, 9 N. H. 394.

cree of the court cannot be enforced.64 A state may impose such terms, conditions, and restrictions upon foreign corporations, other than corporations engaged in interstate commerce, as it may see fit, but such restrictions by a state on foreign corporations must not conflict with provisions of the federal constitution.65 Statutes are found, in many jurisdictions, providing that foreign corporations shall not do business in the state until they have complied with certain requirements of the statute. The effect of such statutes has given rise to much litigation. By some of them it is provided that a foreign corporation shall duly execute a power of attorney appointing an agent upon whom service of process may be made, or shall obtain a certificate from a state officer; and the corporation is usually forbidden to contract or sue in the state before compliance with such provisions. In some states, contracts made before complying with the requirements are held to be void. In other states, it is held that the right of action is merely suspended until the corporation has complied with the law.67 In other states, it is held that such statutory provisions impose merely a penalty, and do not affect the validity of the contract or the right to sue.68

66

64 Cook, Corp. § 757; Williston v. Michigan Southern & N. I. R. Co., 13 Allen (Mass.) 400; Howell v. Chicago & N. W. Ry. Co., 51 Barb. (N. Y.) 378.

65 Cook, Corp. §§ 696, 700; Bank of Augusta v. Earle, 13 Pet. (U. S.) 519; Ducat v. City of Chicago, 48 Ill. 172; Williams v. Creswell, 51 Miss. 817; Paul v. Virginia, 8 Wall. (U. S.) 168; Dundee Mortgage & Trust Inv. Co. v. Nixon, 95 Ala. 318, 10 So. 311; Sullivan v. Sullivan Timber Co., 103 Ala. 371, 15 So. 941; Hart v. Livermore Foundry & Machine Co., 72 Miss. 809, 17 So. 769; Walker v. City of Springueld, 94 Ill. 364; Pembina Consolidated Silver Min. & Mill. Co. v. Pennsylvania, 125 U. S. 181. Corporations are not citizens entitled to the privileges and immunities of citizens of the several states, within the meaning of article 4, § 2, of the constitution of the United States. Cook, Corp. §§ 697-700, and authorities there cited; Paul v. Virginia, 8 Wall. (U. S.) 168; Pierce v. Crompton, 13 R. I. 312.

ec Cook, Corp. § 700; In re Comstock, 3 Sawy. 218, Fed. Cas. No. 3,078.

67 Cook, Corp. § 700; Walter A. Wood Mowing & Reaping Machine Co. v. Caldwell, 54 Ind. 270.

es Cook, Corp. § 700; Wright v. Lee, 4 S. D. 237, 55 N. W. 931.

It is held that, where a state statute provides that contracts made by foreign corporations shall not be enforced in the courts of the state before compliance with certain requirements of the statute, the prohibition will not be extended to suits brought in the federal courts, the contract not being void.9

16. Foreign guardians, conservators, committees, etc.

A guardian cannot sue in a court, even of the United States, held in a state other than that in which he was appointed, except as authorized by the laws of the other state.70

§ 17. Foreign executors and administrators.

At common law, no suit, either at law or in equity, can be maintained by or against the executor or administrator in his official capacity, out of the country or state from which he derives his authority, and to which he is alone amenable.71

If

69 Cook, Corp. § 700; Sullivan v. Beck, 79 Fed. 200; Barling v. Bank of British North America, 50 Fed. 260. It is not within the scope of this work to treat of the rights of foreign corporations to sue where they have failed to comply with the statutes of the respective states. This question is fully considered in a recent work, Cook, Corp. §§ 696700. See, also, People v. Fidelity & Casualty Co. of New York, 153 Ill. 25, 38 N. E. 752; Aultman, Miller & Co. v. Holder, 68 Fed. 467; Dahl v. Montana Copper Co., 132 U. S. 264; Cooper Mfg. Co. v. Ferguson, 113 U. S. 727; Gilchrist v. Helena, H. S. & S. R. Co., 47 Fed. 593; Holder v. Aultman, 169 U. S. 81.

70 Morgan v. Potter, 157 U. S. 195; Lamar v. Micou, 112 U. S. 452; Hoyt v. Sprague, 103 U. S. 613; Smith v. Madden, 78 Fed. 833. Provision is made by statute in some states for the collection of the ward's property, and the sale of real estate belonging to the ward, by nonresident guardians, upon compliance with certain conditions. Such a foreign guardian, suing under such statute, must allege in his bill compliance with the provisions of such statute. Grist v. Forehand, 36 Miss. 69; Vincent v. Starks, 45 Wis. 458; Parrish v. Hatchett, 15 Ky. Law Rep. 847. It is held that the guardian of a nonresident ward may be sued in equity for the settlement of his account in the state of his residence, he having a part of the fund there. Rinker v. Streit, 33 Grat. (Va.) 663; Tunstall v. Pollard's Adm'r, 11 Leigh (Va.) 1.

71 Story, Confl. Laws, § 504a; Banning v. Gotshall, 62 Ohio St. 210, 56 N. E. 1030; Flandrow v. Hammond, 13 App. Div. 325, 43 N. Y. Supp. 145; Hopper v. Hopper, 125 N. Y. 400, 26 N. E. 457; Dixon's Ex'rs v.

a foreign administrator wishes to reach property or collect debts belonging to the estate in a foreign country, he must there obtain letters of administration, and give such security and be come subject to such regulations as its laws prescribe. So, if a creditor wishes to bring a suit in order to satisfy his debt out of the property in another jurisdiction, administration must there be first obtained.72 In most jurisdictions, statutes are found permitting foreign personal representatives to sue in the courts of such jurisdictions on compliance with statutory proSuits brought by foreign administrators are subject

visions.73

Ramsay's Ex'rs, 3 Cranch (U. S.) 319; Johnson v. Powers, 139 U. S. 156; Smith v. Madden, 78 Fed. 833; Vaughan v. Northup, 15 Pet. (U. S.) 1; Judy v. Kelley, 11 Ill. 211, 50 Am. Dec. 455; Durie v. Blauvelt, 49 N. J. Law, 114, 6 Atl. 312; Greer v. Ferguson, 56 Ark. 324, 19 S. W. 966; Magraw v. Irwin, 87 Pa. St. 142; State v. Fulton (Tenn. Ch. App.) 49 S. W. 297. See Lawrence v. Nelson, 143 U. S. 215.

72 Story, Eq. Pl. § 179; Judy v. Kelley, 11 Ill. 214. "In his official capacity, he can neither sue nor be sued out of the country from which he derives his authority, and to which he is alone amenable. * There are a few cases in this country to the effect that a foreign execu tor may be sued in another jurisdiction, and be there made liable to the extent of the assets he may have with him, but the cases go no further than to sustain the action for the purpose of subjecting such assets to the payment of the particular debt. Campbell v. Tousey, 7 Cow. (N. Y.) 64; Swearinger's Ex'r v. Pendleton's Ex'x, 4 Serg. & R. (Pa.) 389; Evans v. Tatem, 9 Serg. & R. (Pa.) 252; Bryan v. McGee, 2 Wash. C. C. 337, Fed. Cas. No. 2,066. It may be doubted whether these decisions can be supported on principle or authority." Judy v. Kelley, 11 Ill. 214.

78 For construction of some of such statutory provisions, see Decker v. Patton, 120 Ill. 464, 11 N. E. 897; Greer v. Ferguson, 56 Ark. 324, 19 S. W. 966; Vaughan v. Northup, 15 Pet. (U. S.) 5; Smith v. Madden, 78 Fed. 833. It is held in Pennsylvania that a foreign executor within the jurisdiction of its courts is liable to a suit by a resident creditor of his decedent, unless it trenches on the jurisdiction of another court already attached, or would expose the parties subject to such jurisdiction to inequitable burdens. Laughlin v. Solomon, 180 Pa. 177, 36 Atl. 704. See Evans v. Tatem, 9 Serg. & R. (Pa.) 252; Swearinger's Ex'r v. Pendleton's Ex'x, 4 Serg. & R. (Pa.) 389; Bryan v. McGee, 2 Wash. C. C. 337, Fed. Cas. No. 2,066; Brodie v. Bickley, 2 Rawle (Pa.) 431. Where the local statute authorizes a suit by a foreign representative, subsequent compliance with the law in the state where the suit is pending, at any time before the hearing, is held in

to the same rules of pleading as actions by domestic administrators.74

many states to cure failure to so comply, and relates back so as to make the bill good from the beginning. Hodges v. Kimball, 91 Fed. 845; Doolittle v. Lewis, 7 Johns. Ch. (N. Y.) 49; Swatzel v. Arnold Woolw. 383, Fed. Cas. No. 13,682; Gidding's Ex'rs v. Green, 48 Fed. 489. 74 Collins v. Ayers, 13 Ill. 358.

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