Thus a foreign corporation authorised by its constitution to acquire and hold land cannot hold land in England in contravention of the Mortmain Acts. Similarly an English corporation empowered by its terms of association to purchase land, work mines, etc., in a foreign country, cannot obtain land in a colony or other foreign country if the holding of land by a corporation is prohibited by the laws of such foreign country. 66 Practically the most important question which arises "with "reference to foreign companies relates to the personal liabilities "of their members. If a company is incorporated by a foreign government, so that by the constitution of the company the "members are rendered wholly irresponsible, or only to a limited "extent responsible, for the debts and engagements of the com"pany, the liability of the members, as such, will be the same in "[England] as in the country which created the corporation.1 "But, with respect to unincorporated companies, the measure of "liability in respect of any given transaction seems, upon princi"ple, to depend upon the law of the place where the transactions "in question occurred (lex loci contractus). The law of agency, "as administered in that place, would, it is conceived, have to be applied; and the law of the place where the company might be "considered as domiciled would only be material for the purpose "of determining the authority given by the members to the agents "by whom the transactions in question were conducted." 2 66 1 General Steam Navigation Co. v. Guillou, 1843, 11 M. & W. 877. Lindley, Company Law, 5th ed., pp. 913, 914. See Maunder v. Lloyd, 1862, 2 J. & H. 718; Story, s. 320 a; and Rule 168, p. 618, post. AMERICAN NOTES. CHAPTER XIX. STATUS OF CORPORATIONS. By "the law of comity among nations, a corporation created by one sover"eignty is permitted to make contracts in another," and to sue and be sued in its Courts; and this rule prevails in the United States, and between the States thereof. Bank of Augusta v. Earle, 13 Pet. 519; Canada Southern R. Co. v. Gebhard, 109 U. S. 529; Société Foncière v. Milliken, 135 U. S. 304; 10 Sup. Ct. 823; Lancaster v. A. I. Co. 140 N. Y. 576; 35 N. E. 964; Wilson v. Martin-Wilson Fire Alarm Co. 149 Mass. 24; 20 N. E. 318; Watson v. Richmond & D. R. Co. 91 Ga. 222; 18 S. E. 306; A., T. & S. F. R. Co. v. Fletcher, 35 Kan. 236; Taylor v. Trust Co. 71 Miss. 694; 15 So. 121; The Missouri Lead M. & S. Co. v. Reinhard, 114 Mo. 218; Cone Company v. Poole, 41 S. C. 70; 19 S. E. 203; Lytle v. Custead, 4 Tex. Civ. App. 490; 23 S. W. 451 ; Humphreys v. Newport News & M. V. Co. 33 W. Va. 135; 10 S. E. 39. Citizens of one State may organise a corporation under the laws of another State for the purpose of doing business in the former. Lancaster v. A. I. Co. 140 N. Y. 576; 35 N. E. 964; Oakdale Mfg. Co. v. Garst (R. I.), 28 Atl. 973; Bank v. Hall, 35 Ohio St. 158; Danforth v. Penny, 3 Met. (Mass.) 564. Contra, Hill v. Beach, 12 N. J. Eq. 31 (1858). See 26 Am. Law Rev. 342. But the rule of comity does not extend to a foreign corporation which is by its charter forbidden to do business in the State of its origin. Land Grant Railway v. Courts of Coffey County, 6 Kan. 245. See, generally, 40 Cent. Law J. 383; 47 Am. & Eng. Corp. Cas. 519; 10 Am. R. & Corp. R. 621. As to what constitutes "doing business," see Cooper Mfg. Co. v. Ferguson, 113 U. S. 727; Reeves v. Harper, 43 La. An. 516; Scruggs v. Scottish Mortgage Co. 54 Ark. 566; Bertha Zinc & Mineral Co. v. Clute, 7 Misc. Rep. 123; 27 N. Y. Supp. 342; Murfree on Foreign Corporations, ss. 65–73. One who deals with a foreign corporation is estopped to deny its right to do business. Lancaster v. A. I. Co. 140 N. Y. 576; 35 N. E. 964; Galveston Land & Imp. Co. v. Perkins (Tex. Civ. App.), 26 S. W. 256; Fire Engine Co. v. Town of Mt. Vernon, 9 Wash. St. 142. The capacity of a foreign corporation is determined by its charter. Bank of Augusta v. Earle, 13 Pet. 588; Relf v. Rundle, 103 U. S. 226; St. Louis Railroad v. Terre Haute Railroad, 145 U. S. 393; 12 Sup. Ct. 953; Lancaster v. A. I. Co. 140 N. Y. 576; Riley v. Diggs, 2 Demarest (N. Y.), 184; Rue v. Railway Co. 74 Tex. 475; 8 S. W. 533. But the validity of its acts is determinable by the lex loci where the latter properly governs. Runyan v. Coster's Lessee, 14 Pet. 122; Bard v. Poole, 12 N. Y. 495; Rothrock v. Dwelling-house Ins. Co. 161 Mass. 423; 37 N. E. 206. A statute, however, which in general terms forbids corporations to do certain things, is not necessarily applicable to foreign corporations. Vanderpoel v. Gorman, 140 N. Y. 563; 35 N. E. 923. In the absence of any local prohibition, a foreign corporation may acquire and convey land. Lancaster v. A. I. Co. 140 N. Y. 576; 35 N. E. 964; Taylor v. Trust Co. 71 Miss. 694; 15 So. 121; Missouri L. M. & S. Co. v. Reinhard, 114 Mo. 218; 21 S. W. 488. See also, 35 Cent. Law J. 166; American Mortgage Co. v. Tennille, 87 Ga. 28; Carlow v. C. Aultman & Co. (Neb.) 44 N. W. 873. Whilst, in the absence of any prohibition, it is presumed that a foreign corporation may exercise the powers conferred by its charter, Christian Union v. Yount, 101 U. S. 352; yet it may be altogether excluded, or may be admitted on such terms and conditions as the State may think proper to impose, Paul v. Virginia, 8 Wall. 168, 181; Pembina Mining Co. v. Pennsylvania, 125 U. S. 181; Boston Investment Co. v. Boston, 158 Mass. 461; Fawcett v. Iron Hall, 64 Conn. 170; 29 Atl. 614; Pennsylvania Co. for Ins. on Lives v. Bauerle, 143 Ill. 459; People v. Pavey, 151 Ill. 101; 37 N. E. 691; Home Ins. Co. v. Davis, 29 Mich. 238; W. U. Tel. Co. v. Mayer, 28 Ohio St. 521; State v. Ackerman (Ohio Sup.), 37 N. E. 828; provided that the limitation imposed on the right to contract does not invade the exclusive power of Congress to regulate commerce among the several States, Cooper Mfg. Co. v. Ferguson, 113 U. S. 727, 734; Horn Silver Mining Co. v. New York, 143 U. S. 305. But, if admitted, the foreign corporation must, in the absence of legislation equivalent to making it a domestic corporation, "be taken, both by the government and those who "deal with it, as a creature of the law of its own country, and subject to all "the legislative control and direction that may be properly exercised over it "at the place of its creation." Canada Southern R. Co. v. Gebhard, 109 U. S. 527, 537. Whether the failure of a foreign corporation to comply with the conditions prescribed for admission to do business avoids contracts made by it is a question as to which the decisions are conflicting. Where penalties are prescribed for such failure, it is the rule to treat them as exclusive; and it should not be implied that contracts are void if the object of the statute can be otherwise attained. Morawetz on Private Corporations, ss. 665, 666. For decisions sustaining the validity of contracts, see Gamble v. Caldwell, 98 Ala. 577; Lumber Co. v. Improvement Asso. 55 Ark. 625; 18 S. W. 1055; C. B. Rogers & Co. Corp. v. Simmons, 155 Mass. 259; 29 N. E. 580; Cooper Mfg. Co. v. Ferguson, 113 U. S. 727; Marshall v. Reading Fire Ins. Co. 78 Hun, 83; 29 N. Y. Supp. 334; Toledo T. & L. Co. v. Thomas, 33 W. Va. 566; 11 S. W. 37; Middlebrook v. Daniel Bradley Mfg. Co. (Tex. Civ. App.) 27 S. W. 169; Kindel v. Beck & Pauli Lithographic Co. (Colo.) 35 Pac. 538; Fire Engine Co. v. Town of Mt. Vernon, 9 Wash. 142; 37 Pac. 287; Wright v. Lee (S. Dak.), 51 N. W. 706. Contra, Farrior v. New England Mortgage Security Co. 88 Ala. 275 ; 7 So. 200 ; Seamans v. Zimmerman (Iowa), 59 N. W. 290; Reliance Mut. Ins. Co. v. Sawyer, 160 Mass. 413; 36 N. E. 59; Lombard Lumber Co. v. Thomas, 92 Tenn. 587. See Pennsylvania Co. for Ins. of Lives v. Bauerle, 143 Ill. 459. The liability of foreign corporations to suit is limited in New York by the provision that such corporations cannot be sued by a non-resident on a cause of action that arose out of the State; and this provision is applicable to a nonresident who has been appointed administrator under the laws of New York. Robinson v. Oceanic Steam Nav. Co. 112 N. Y. 315; 19 N. E. 625; Childs v. Harris Mfg. Co. 104 N. Y. 477; Gundlin v. Hamburg Am. Packet Co. 31 Abb. N. Cas. 437; 28 N. Y. Supp. 572; Colorado State Bank v. Gallagher, 76 Hun, 310; 27 N. Y. Supp. 688; Robeson v. Cent. R. R. of N. J. 76 Hun, 444; 28 N. Y. Supp. 104. See Fidelity Mutual Life Asso. v. Ficklin, 74 Md. 172. See, generally, as to suits by and against foreign corporations, Thompson, Commentaries on the Law of Corporations, titles xviii., xix.; Holland v. Mobile & Ohio R. R. Co. 16 Lea (Tenn.), 414; Toronto Gen. Trust Co. v. C., B., § Q. R. R. Co. 123 N. Y. 37; Baltimore & Ohio R. R. Co. v. Adams Express Co. 22 Fed. Rep. 404 ; Rehm v. German Ins. § Sav. Inst. (Ind.) 25 N. E. 173 ; Henry v. Stuart, 14 Phila. 110; Central R. R. & Banking Co. v. Carr, 76 Ala. 388; 52 Am. Rep. 339; Crouse v. Insurance Co. 56 Conn. 176. It is essential to the maintenance of a suit against a foreign corporation that it should have been duly served with process within the jurisdiction, or that it should have voluntarily appeared in the action. St. Clair v. Cox, 106 U. S. 350; Fitzgerald Const. Co. v. Fitzgerald, 137 U. S. 98; 11 Sup. Ct. 36; Ambler v. Archer, 1 App. D. C. 94; Mex. Cent. Railway v. Pinkney, 149 Mass. 194; Rothrock v. Dwelling-house Ins. Co. 161 Mass. 423; 37 N. E. 206; McLaren v. Byrnes, 80 Mich. 275; Hester v. Rasin Fertilizer Co. 33 S. C. 609; 12 S. E. 563. Process may be served on the local agent representing the corporation in the jurisdiction within which the suit is brought. Société Foncière v. Milliken, 135 U. S. 304. See Morawetz on Private Corporations, 2nd ed., ss. 979-983. Debts due from foreign corporations, or interests in the stock of such corporations, held by non-residents, are not attachable in New York. Douglass v. P. Ins. Co. 138 N. Y. 209; 33 N. E. 938. In regard to the enforcement of the personal liability of a resident stockholder of a foreign corporation, the following rules are observed if such liability rests in contract merely, it will be enforced everywhere; if it grows out of a statute of the State to which the corporation belongs, its enforcement, though a matter of comity, will generally be conceded if the liability is in its nature contractual; but its enforcement will not be conceded if the statute is in its nature penal. As to what constitutes a penal statute, see Huntington v. Attrill, 146 U. S. 657 ; Flash v. Conn, 109 U. S. 371. Where the statute creating the liability also prescribes a remedy for its enforcement, it is frequently held that such remedy is exclusive, and can be pursued only before the tribunals of the State by which the law was enacted. For an able and exhaustive examination of this subject, see 3 Thompson's Commentaries on the Law of Corporations, ss. 3050-3064. A creditor of a corporation, who has obtained a judgment against it in the State of its domicil, cannot, after the corporation has ceased to do business, maintain a bill in equity against a shareholder in another State for the amount of his unpaid subscription to the stock. Patterson v. Lynde, 112 Ill. 196. CHAPTER XX. FAMILY RELATIONS. (A) HUSBAND AND WIFE. RULE 127.1 - The authority of a husband as regards the person of his wife while in England is not affected by the nationality or the domicil of the parties, but is governed wholly by the law of England.2 Comment. The question, what amount of control a husband may exercise over the freedom of his wife, and what amount of force (if any) he may use in controlling her, must be answered with reference to the law of the place where they are residing. Our Courts certainly would not allow a foreigner, when in England, whatever might be his domicil, to exercise over his wife any power which might not be lawfully exercised by an EnglishIt seems, also, that a foreigner, resident with his wife in England, may, though not domiciled here, apply to our Courts for restitution of conjugal rights.3 man. (B) PARENT AND CHILD. RULE 128.5-The authority of a parent as regards the person of his child while in England is not affected by the nationality or the domicil of the parties, but is governed wholly by the law of England. 1 See Wharton, s. 120; Polydore v. Prince (Am.), Ware, 402; Phillimore, s. 486. As to effect of marriage on property of husband and wife, see in reference to immovables, Rule 138, p. 516, post, and to movables, Rules 171-173, pp. 648-655, post. 2 As to meaning of law of England, see pp. 75-77, ante. 3 See Connelly v. Connelly, 1851, 7 Moore P. C. 438. See Story, s. 463a; Westlake, 3rd ed., p. 48; Phillimore, ss. 522–531; Wharton, ss. 253, 254. 5 See Johnstone v. Beattie, 1843, 10 Cl. & F. 42, 114; Nugent v. Vetzera, 1866, L. R. 2 Eq. 704. |