Note. Service of process.

1. Domestic corporations:

(a) At common law, on officers, was sufficient: 1819, McQueen v. Middleton Mfg. Co., 16 Johns. 5; 1837, Meriwether v. Bank of Hamburg, Dud. (S. C.) 36; 1846, Glaize v. South Car. R. Co., 1 Strobh. L. (8. C.) 70; 1869, Newell v. Great Western R. Co., 19 Mich. 336; 1871, Hartford City Fire Ins. Co. v. Carrugi, 41 Ga. 660; 1875, Barnett v. Chicago & L. H. R. Co., 4 Hun 114.

(b) By statutes, service may be made on general officers, such as president, secretary, cashier, general superintendent, managing officers, etc.: 1854, Chamberlin v. Mammoth Mining Co., 20 Mo. 96 (president); 1854, Willamette Falls Co. v. Williams, 1 Ore. 112; 1854, Commerce Bank v. Rutland & W. R., 10 How. Pr. 1 (general manager); 1865, Carr v. Commercial Bank of Racine, 19 Wis. 272; 1865, Gillig v. Independent G. & S. M. Co., 1 Nev. 247 (secretary); 1867, Adams Express Co. v. St. John, 17 Ohio St. 641 (general superintendent); 1872, Newby & Colts Pat. Fa. Co., L. R. 7 Ct. Q. B. 293; 1882, McMurtry v. Tuttle, 13 Neb. 232 (treasurer); 1893, Taylor v. Granite State, etc., Assn., 136 N. Y. 343, 32 Am. St. Rep. 749 (an attorney is not such officer).

But a ticket seller (1859, Doty v. Mich. C. R. Co., 8 Abb. Pr. 427; 1900, Denver, etc., R. Co. v. Roller, 100 Fed. Rep. 738); baggage master (1851, Flynn v. Hudson Riv. R. Co., 6 How. Pr. 308); ship captain (1862, Upper Miss. Trans. Co. v. Whittaker, 16 Wis. 220); or an attorney (1893, Taylor v. Granite State Assn., 136 N. Y. 343, 32 Am. St. Rep. 749), are not such officers as justify service unless specially provided for.

Yet generally it is now held that any agent authorized to contract the debt, or represent the corporation in the particular transaction, sufficiently represents the corporation in accepting service of summons in a mattter arising from such transaction: 1892, Klopp v. Creston City W. W. Co., 34 Neb. 808, 33 Am. St. Rep. 666; Am. Bell Tel. Co., 29 Fed. Rep. 17, 34; 1892, Reyer v. Odd Fellows', etc., Assn., 157 Mass. 367, 34 Am. St. Rep. 288; 1894, Foster v. Betcher Lumber Co., 5 S. D. 57, 49 Am. St. Rep. 859, 23 L. R. A. 490; 1895, Gude v. Dakota F. & M. Ins. Co., 7 S. D. 644, 58 Am. St. Rep. 860; 1896, Pollock v. Building & L. Assn., 48 S. C. 65, 59 Am. St. Rep. 695; 1898, Turcott v. Railroad Co., 101 Tenn. 102, 70 Am. St. Rep. 661; 1898, Conn. Mut. Ins. Co. v. Spratley, 172 U. S. 602.

2. Foreign corporations.

(a) At common law, not on an officer outside of the state creating the corporation: 1819, McQueen v. Middleton Mfg. Co., 16 Johns. 5; 1834, Peckham v. North Parish, 16 Pick. (Mass.) 274; 1875, Barnett v. Chicago & L. H. R. Co., 4 Hun 114.

But see, contra, 1871, Hartford Ins. Co. v. Carrugi, 41 Ga. 660; 1875, Bawknight v. Liverpool L. & G. Ins. Co., 55 Ga. 195.

(b) Under statutes, only when the statute allows, i. e., by express statutory authority, and then generally only such as are doing business and have agents in the state: 1861, O. & M. R. Co. v. Wheeler, 1 Black (U.S.) 286, on 297; 1866, Camden Rolling M. Co. v. Swede Iron Co., 32 N. J. Law 15; 1868, Howell v. Chicago & N. W. R. Co., 51 Barb. (N. Y.) 378; 1873, Lathrop v. Union Pac. R. Co., 1 McAr. (D. C.) 234; 1875, Dallas v. Atlantic & M. R. Co., 2 McAr. (D. C.) 146; 1893, Aldrich v. Anchor Coal Co., 24 Ore. 32, 41 Am. St. Rep. 831; 1894, Foster v. Betcher Lumber Co., 5 S. D. 57, 49 Am. St. Rep. 859, 23 L. R. A. 490, note; 1898, Crook v. Girard Iron Co., 87 Md. 138, 67 Am. St. Rep. 325; 1898, Carstens v. Leidigh & L. Co., 18 Wash. 450, 63 Am. St. Rep. 906, 39 L. R. A. 548; 1898, Conn. Mut. Ins. Co. v. Spratley, 172 U. S. 602; 1899, Mecke v. Valleytown M. Co., 93 Fed. Rep. 697; 1900, Denver & R. G. R. Co. v. Roller, 100 Fed. Rep. 738; 1900, J. W. Thompson v. Whitehead, 185 Ill. 454; 1901, Abbeville Elec. L., etc., Co. v. Western El. Co., 61 S. C. 361, 85 Am. St. R. 890, note 905.

While it is held that only an officer named in the statute can accept service, 1895, First Nat'l Bk. v. Huntington Dis. Co., 41 W. Va. 530, 56 Am. St. Rep. 878, yet it would seem that any agent that is authorized to do the business is sufficient if he regularly represents the company in such business. See supra, Domestic corporations (b).

But service on agent temporarily in the state, is not generally sufficient (see cases above), though there are a few cases to the contrary: 1877, Hiller v. B. & M. R. Co., 70 N. Y. 223; 1887, Childs v. Harris Mfg. Co., 104 N. Y. 477; 1901, Abbeville Elec. L. Co. v. Western El. Co., 61 S. C. 361, 85 Am. St. R. 890, note 905.

Sec. 326. What is doing business so as to authorize service.

RYERSON v. WAYNE CIRCUIT JUDGE.'

1897. IN THE SUPREME COURT OF MICHIGAN. 114 Mich. Rep. 352-354.

[Mandamus by Ryerson to compel the circuit judge of Wayne county to vacate an order setting aside the service of summons against a foreign corporation.]

MOORE, J. March 11, 1897, relator, a resident of Detroit, commenced a suit by summons in the Wayne Circuit Court against the Beach & Clarridge Company, a Massachusetts corporation, for a cause of action accruing in Wayne county. The service was made upon H. L. Baker, who is said by relator to be the traveling agent of said corporation. Motion was made to set aside the service, because unauthorized. The service was set aside and the proceedings dismissed. It is sought to review that action here.

It is claimed the service was authorized by Act No. 61 of the Public Acts of 1895, which reads:

"Suits may be commenced at law or in equity in the circuit court for any county of this state where the plaintiff resides

against any corporation not organized under the laws of this state, in all cases where the cause of action accrues within the state of Michigan, by service upon any officer or agent of the corpora

tion," etc.

The record shows that Mr. Baker was a traveling salesman of the Massachusetts corporation. His business was the taking of orders for goods in this and a number of other states. He had no office in this state. He did not have charge of any men under him. His duties were those of the ordinary traveling agent, selling goods to retail dealers.

*

It is the claim of the respondent that Mr. Baker was not such an agent as is meant by the statute, where it authorizes service upon an agent; citing Newell v.. Railway Co., 19 Mich. 336; Watson v. Wayne Circuit Judge, 24 Mich. 38; Lake Shore, etc., R. Co. v. Hunt, 39 Mich. 469; Pettit v. Booming Co., 74 Mich. 214; Kirby Carpenter Co. v. Trombley, 101 Mich. 447. These cases do not throw much light upon the discussion, as the statute construed by them is quite different from the one to be construed here. In the last three cases the statute reads that service might be made on certain officers, and the "general or special agent, superintendent or other principal officer."

1 Part of opinion omitted.

71-WIL. CAS.

Counsel also cites Maxwell v. Railroad Co., 34 Fed Rep. 286. In this case Justice Brown held: "It does not appear to me that the law of this state with respect to suits against foreign corporations (2 How. Stat., § 8145) cuts any figure in the case, since it provides for service of process upon the agent of a foreign corporation only where the cause of action arises within this state," and he held that the cause of action did not arise in this state, and for that reason the court did not get jurisdiction. In the case of Fairbank & Co. v. Cincinnati, etc., R. Co., 4 C. C. A. 403, 54 Fed. Rep. 420, there was a dissenting opinion, which we think is more in harmony with the later decisions of this court, which we shall hereafter cite, than the prevailing opinion. In Gottschalk Co. v. Distilling, etc., Co., 50 Fed. Rep. 681, it was held that the person called a "distributing agent" was not an agent, but was a purchaser of the goods of defendant.

We think the record fairly discloses that the Massachusetts corporation was doing business in this state, and that it was done through the agency of Mr. Baker, its traveling agent, and that the case comes within the provisions of the statute. There can be no doubt of the right of this corporation to do business in this state, and of its right to sue its debtors in the courts of this state. When it undertakes to do business here, it must do so in compliance with our laws, which provide for the bringing of suits and the method of service. Vorheis v. People's Mut. Ben. Soc., 86 Mich. 31; Shafer Iron Co. v. Iron Circuit Judge, 88 Mich. 464; Turner v. Tunnel Co., 102 Mich. 574. We think the service of process was good. The writ will issue as prayed.

The other justices concurred.

Note. See, 1894, Foster v. Betcher Lumber Co., 5 S. D. 57, 23 L. R. A. 490, note; 1895, Florsheim, etc., Dry Goods Co. v. Lester, 60 Ark. 120, 46 St. Rep. 162; 1896, Comm. Bank v. Sherman, 28 Ore. 573, 52 Am. St. Rep. 811; 1898, Crook v. Girard Iron Co., 87 Md. 138, 67 Am. St. Rep. 325; 1898, Conn. Mut. L. Ins. Co. v. Spratley, 172 U. S. 602; 1898, Mearshon v. Pottsville L. Co., 187 Pa. St. 12, 67 Am. St. Rep. 560; 1899, Wall v. Ches. & O. R. Co., 95 Fed. Rep. 398; 1899, In re La Bourgogne, 79 L. T. (N. S.) 331; 1901, Abbeville Elec. L. Co. v. Western El. Co., 61 S. C. 361, 55 L. R. A. 146, 85 Am. St. R. 890, note 905.

But see, 1895, State v. Bristol Sav. Bk., 108 Ala. 3, 54 Am. St. Rep. 141.

Sec. 327. Pleading.

Corporation plaintiff―need not allege corporate existence.

EXCHANGE NATIONAL BANK v. L. J. CAPPS ET AL.1

1891. IN THE Supreme Court of NebrasKA. 32 Nebraska Rep. 242-245, 29 Am. St. Rep. 433.

[Suit by the bank upon a promissory note made payable to the order of the Exchange National Bank. The petition read simply that "Plaintiff complains," etc., without alleging it was a corporation, or stating under what law it was organized. A demurrer to the petition was sustained, and this is the error assigned.]

1 Statement abridged.

MAXWELL, J. In Platte Valley Bank v. Harding, I Neb. 461, it was held that the maker of a note payable to a bank, in an action on the note, can not raise the question of the bank's incorporation. In Angell & Ames on Corporations, section 632, it is said: "It is, however, generally admitted that a corporation may declare in its corporate name, without setting forth in the declaration the act of incorporation or averring that it is a corporation if the act be private.'

At common law it is not necessary to set forth in the declaration the act of incorporation when an action is brought in the corporate name. The code was designed to simplify procedure. There is no requirement of the statute that the act of incorporation shall be averred, and it seems to be sufficient to bring the action in the corporate name.

In Stanley v. R. & D. R. Co., 89 N. C. 331, it is said: "It is difficult to assign any sufficient reason why a corporation suing or sued should be designated by any further description than its corporate name, which does not apply with equal force to a natural person, the only purpose in either case being to point out the party to the action. The appearance and plea to the merits or answer is a concession of the sufficiency of the designation of the person, natural or artificial, and, if intended to be disputed, it should be under the present practice by answer."

So under the section of the Iowa code in regard to actions on written instruments, when "suit may be brought by or against any of the parties thereto, by the same name and description as those by which they are designated in such instrument." (Harris Mfg. Co. v. Marsh, 49 Iowa 11, 4 Am. & Eng. Ency. of Law 285.) There is no requirement of the code that authorizes a court to insist upon setting out the act of incorporation in an action brought in the corporate name. The common law prevails in this state in all matters where there is no statute to the contrary. The code has not changed the common law in this respect. It was, therefore, unnecessary to aver the act of incorporation.

The judgment of the district court is reversed, and the cause remanded for further proceedings.

Reversed and remanded.

The other judges concur.

Note. See, also, 1860, Central Bank v. Knowlton, 12 Wis. 624, 78 Am. Dec. 769; 1867, Stein v. Ind. Bldg. & L. Assn., 18 Ind. 237, 81 Am. Dec. 353; 1894, Norfolk, etc., R. Co. v. Hoover, 79 Md. 253, 47 Am. St. Rep. 392; 1896, Shick v. Citizens' Enterprize Co., 15 Ind. App. 329, 57 Am. St. Rep. 230; 1897, Holden v. Great W. El. Co., 69 Minn. 527, 65 Am. St. Rep. 585; 1898, Emerson v. Nimocks, 88 Fed. Rep. 280; 1898, Parker v. Carolina Sav. Bk., 53 S. C. 583, 69 Am. St. Rep. 888; 1899, Wood v. Friendship Lodge, 20 Ky. L. Rep. 2002, 50 S. W.-Rep. 836; 1899, Moynihan v. Drobaz, 124 Cal. 212, 71 Am. St. Rep. 46; 1901, Brady v. National Supply Co., 64 O. S. 267, 83 Am. St. Rep. 753. 60 N. E. 218.

See following case, contra.

Sec. 328. Same. Contra,-must allege corporate existence.

R. W. HOLLOWAY v. THE MEMPHIS, EL PASO AND PACIFIC R. R. CO.1

1859. IN THE SUPREME COURT OF TEXAS. 23 Texas Rep. 465–468, 76 Am. Dec. 68.

[Suit by the corporation (without alleging its corporate existence) against Holloway upon a written contract of subscription to the stock of the railroad company. The defendant demurred, the court over

ruled the demurrer, and this is the error assigned.]

WHEELER, C. J. It is the settled rule of the English law, and it is the rule in New York, Virginia and some of the other states, that where a body politic institutes legal proceedings, either on a contract or to recover property, it must, at the trial, under the general issue, prove the fact of incorporation. (Angell & Ames on Corp., § 632, 4th edit., and cases cited.) In the case of The Bank v. Simonton, 2 Texas Rep. 531, this court held that the plaintiffs must aver and prove that they were a body corporate, duly constituted by competent authority, to enable them to maintain this action. That was the case of a foreign corporation. But the principle of the decision applies equally to a domestic corporation, created by private act, of which the court can not judicially take notice.

In some of the states a different rule obtains, and it is held that, if in a suit by a corporation the defendant plead the general issue, it is an admission of the corporate existence of the plaintiffs, on the principle, it seems, that by pleading to the merits, the defendant admits the capacity of the plaintiffs to sue. (Angell & Ames on Corp., § 633.) Those courts, however, make an exception in the case of foreign corporations. (Angell & Ames on Corp., § 633.) But the reason for a distinction in this respect is not very clearly discoverable. A foreign corporation is required to prove its corporate legal existence, because the court can not judicially know the legal being of such a corporation. The court can not take notice, ex officio, of the foreign law, by which it is created a body corporate. The same reason applies to a domestic corporation, created by a private act. The court can not judicially take notice of a private statute, and there would seem to be the same reason for requiring the proof to be made in the one case as in the other.

The English rule seems most in consonance with principle. The merely naming themselves a company shows the fact of an association acting under a particular name, but not that they have the legal capacity to act, and prosecute suits by that name; nor can the court know that they have such capacity, unless they are constituted a body corporate by public law, or are recognized as such by a law, of which the court can judicially take notice. It would seem, therefore, on

1 Statement abridged; arguments omitted.