chusetts.

In such a case the stockholder can be held there but

not here.1895

Thus, if the law of the chartering State provides that all creditors shall join in an equitable proceeding against the corporation and all the stockholders, neither an action at law, 1896 nor a creditor's bill in equity,1897 will lie in Massachusetts; for it is not the kind of action contemplated by the statute.

A creditor in such a case must go into the chartering State and obtain a judgment, upon which he can then proceed in Massachusetts.1898 Such a course may not lead to satisfactory results, as, for example, where the corporation has been dissolved, so that it cannot be made a party in the foreign jurisdiction; 1899 and, as we have seen, it may be that even the courts of the chartering State could not acquire jurisdiction of all non-resident stockholders,1900 so as to lay a foundation for a proceeding in Massachusetts.

One who chooses to sue in Massachusetts must of course conform to the practice here, and cannot claim the benefit of statutory remedies established in other jurisdictions.1901 Therefore, where the Massachusetts practice requires, for example, certain parties as necessary to the jurisdiction, the creditor cannot rely upon a decision of the chartering State to the effect that such parties are not necessary. 1902

1895 Hancock National Bank v. Ellis, 172 Mass, 39, 45; Remington v. Samana Bay Co., 140 Mass. 494; Rice v. Merrimac Hosiery Co., 56 N. H. 114; Halsey v. McLean, 12 Allen, 438.

1896 Erickson v. Nesmith, 15 Gray, 221.

1897 Erickson v. Nesmith, 4 Allen, 233; Clark v. Knowles, 187 Mass. 35, 39.

See Post v. Toledo, etc., Railroad, 144 Mass. 341; New Haven, etc., Co. v. Linden Spring Co., 142 Mass. 349; Hale v. Allinson, 188 U. S. 56; Finney v. Guy, 189 U. S. 335; Marshall v. Sherman, 148 N. Y. 9; Bates v. Day, 198 Pa. St. 513; Miller v. Smith, 26 R. I. 146.

1898 Broadway National Bank v. Baker, 176 Mass. 294, 57 N. E. 603.

1899 Remington v. Samana Bay Co., 140 Mass. 494.

1900 Hancock National Bank v. Ellis, 172 Mass. 39, 45; Clark v. Knowles,

187 Mass. 35, 40.

1901 Clark v. Knowles, 187 Mass. 35, 39.

See Drinkwater v. Portland Mar. Ry., 18 Me. 35.

1902 Clark v. Knowles, 187 Mass. 35, 39.

p. Liability of non-resident stockholders in foreign

corporations.

As we have seen, the Massachusetts statutes authorize the attachment of shares of stockholders in domestic or federal corporations.1903 But, at common law, shares of stock in a foreign corporation owned by a non-resident defendant could not be attached; 1904 and there is no statute authorizing such attachment in this State; therefore, there can be no such attachment.1905

It has been held, however, that if the certificate has been endorsed in blank so as to be practically a chattel, it can be attached in the hands of a resident bailee.1906

§ 63. Foreign corporations may hold real estate. 1907 "Foreign corporations organized for any purpose for which domestic corporations may be organized under the provisions of section seven, which have complied with the provisions of sections fifty-eight and sixty, may purchase and hold such real estate in this commonwealth as may be necessary for conducting their business." 1908

§ 64. Issue of stock on domestic franchises.

"If a foreign corporation which owns or controls a majority of the capital stock of a domestic street railway, gas light or electric light corporation issues stock, bonds or other evidences of indebtedness based upon or secured by the property, franchise or stock of such domestic corporation, unless such issue is authorized by the laws of this commonwealth, the supreme judicial court shall have jurisdiction in equity in its discretion to dissolve such domestic corporation. If it appears to the attorney-general

1903 Supra, § 28, f. Cf. as to execution, R. L., c. 177, § 46.

1904 Pinney v. Nevills, 86 Fed. Rep. 97 (C. C., Mass.); Plimpton v. Bigelow, 93 N. Y. 592; Ireland v. Reduction Co., 19 R. I. 180; Winslow v. Fletcher, 53 Conn. 390.

1905 Pinney v. Nevills, 86 Fed. Rep. 97.

1906 Simpson v. Jersey City Contracting Co., 47 App. Div. 17, 61 N. Y. S. 1033.

1907 As to mortgages to and by foreign corporations, see supra, § 4, zb. 1908 St. 1903, c. 437, § 63; R. L., c. 126, § 10; St. 1895, c. 387; St. 1888, c. 321. No material citations to 193 Mass.

This provision is substantially the same as in the Revised Laws.

that such issue has been made, he shall institute proceedings for the dissolution of such corporation and for the proper disposition of its assets. The provisions of this section shall not affect the right of foreign corporations, their officers or agents to issue stock and bonds in fulfilment of contracts existing on the fourteenth day of July in the year eighteen hundred and ninety-four." 1909

A foreign railroad corporation, if authorized by its charter, may acquire the securities and assume the ownership of domestic street railways.1910

§ 65. Certificate of increase or decrease of capital.

"All foreign corporations of the classes described in section fiftyeight, and such foreign corporations as are engaged in the business of selling or negotiating bonds, mortgages, notes or other choses in action, shall, within thirty days after the payment in of an increase of capital stock, upon payment of the fee hereinafter provided, file in the office of the secretary of the commonwealth a certificate of the amount of such increase and the fact of such payment, signed and sworn to by its president, treasurer and a majority of its directors or officers having the powers usually exercised by directors. Within thirty days after the vote of such corporation authorizing a reduction of its capital stock, a copy of such vote, signed and sworn to by the clerk of the corporation, shall, upon payment of the fee hereinafter provided, be filed in the office of the secretary of the commonwealth." 1911

1909 St. 1903, c. 437, § 64; R. L., c. 126, § 11; St. 1894, c. 476. Not cited to 193 Mass.

This provision is substantially the same as in the Revised Laws. 1910 2 Op. Atty.-Gen. 420. See as to the consolidation of railroad companies, St. 1907, c. 585.

1911 St. 1903, c. 437, § 65; R. L., c. 126, § 12; St. 1895, c. 311, § 1; St. 1891, c. 341, §§ 1, 3, 4. No material citations to 193 Mass. See 1 Op. Atty. Gen. 583.

This section as it stands is broader than that in the Revised Laws because it includes, (1) not only foreign corporations having a usual place of business in the State, but also those engaged in the construction, repair, etc., of buildings, railways, etc.; (2) mining and manufacturing companies actually conducting their operations entirely outside of the commonwealth.

While the second of these two classes of additional corporations was still exempted from filing the certificate, it was held that a corporation engaged in dyeing and business pertinent thereto was not a manufacturing corporation so as to be exempt. 1 Op. Atty.-Gen. 583.

According to the practice, the certificate of increase of capital need not be filed until the whole of the increase is paid in.

§ 66. Annual certificate of condition.

66

Every foreign corporation of the classes described in section fifty-eight shall annually, within thirty days after the date fixed for its annual meeting last preceding the date of such certificate, or within thirty days after the final adjournment of said meeting, but not more than three months after the date so fixed for said meeting, prepare and file in the office of the secretary of the commonwealth, upon payment of the fee hereinafter provided, a certificate signed and sworn to by its president, treasurer and by a majority of its board of directors showing the amount of its authorized capital stock, and its assets and liabilities as of a date not more than ninety days prior to said annual meeting, in such form as is required of domestic corporations under the provisions of section forty-five, and the change or changes, if any, in the other particulars included in the certificate required by section sixty made since the filing of said certificate or of the last annual report." 1912

The date for filing the certificate is now within thirty days. after the annual meeting, as in the case of domestic corporations. 1913

Foreign corporations may, therefore, in some cases have to change the date of their annual meeting or the date of their fiscal year to correspond with the requirements of the act, or else have a special account made up, as under this section the account must be made up as of not more than ninety days prior to the annual meeting. The object of this provision is to make the reports uniformly fresh when filed.

This section and the one following apply to corporations

1912 St. 1905, c. 233; St. 1903, c. 437, § 66; R. L., c. 126, § 13; St. 1895, c. 311, § 1; St. 1891, c. 341, § 1.

Cited in Heard v. Pictorial Press, 182 Mass. 530; Attorney-General v. Electric Storage Battery Co., 188 Mass. 239; Friedenwald Co. v. Warren, 81 N. E. 207. Formerly the annual certificate was to be filed in March. 1913 See supra, § 45.

doing both an interstate and domestic business, but not to those doing a purely interstate business.1914

As to the liability for false statements in reports, see supra, § 60, and infra, § 70.

§ 67. Approval of certificate.

"A certificate which is required to be filed by the preceding section shall be accompanied by a written statement under oath by an auditor, as provided in section forty-seven, except that such auditor shall in all cases be chosen by the board of directors. Before it is filed, it shall be submitted to the commissioner of corporations together with the evidences of the payment of any taxes which may have been assessed upon the corporation by any city or town in the Commonwealth for the year last preceding. The commissioner of corporations shall examine said certificate and said evidences and shall, as tax commissioner, assess upon the corporation an excise tax, if any is due, in accordance with the provisions of section seventy-five. If he finds that the certificate is in compliance with the requirements of the preceding section, he shall indorse his approval thereon; but no certificate shall be filed until he has indorsed his approval thereon and until the excise tax required by section seventy-five if any is due has been paid to the treasurer and receiver general." 1915

§ 68. Penalty for not filing certificate.

"If a foreign corporation of the classes described in section fifty-eight omits to file the certificate required by section sixtysix, the commissioner of corporations shall give notice to the corporation of its default, by mail, postage prepaid, directed to the resident manager, if any, in the United States, or to any other person designated by the corporation, by written notice filed in the office of the commissioner, as provided in section fifty-nine for notice of the service of legal process. If it fails to file such certificate within thirty days after such notice of default has been mailed, it shall forfeit to the commonwealth not less than

1914 Attorney General v. Electric Storage Battery Co., 188 Mass. 239. 1915 St. 1903, c. 437,1§ 67; R. L., c. 126, § 14; St. 1897, c. 492; St. 1891, c. 341, § 5.

Citations. St. 1903, c. 437, § 67: Attorney-General v. Electric Storage Battery Co., 188 Mass. 239.