it held that its former rulings were wrong.

The opinion

was delivered by MR. JUSTICE WAYNE. He reviewed the earlier cases and said that the case of Strawbridge vs. Curtis, which, as has been stated, decided that where there are two or more joint plaintiffs and two or more joint defendants each of the plaintiffs must be capable of suing each of the defendants, in the Courts of the United States in order to support the jurisdiction, and the case of the Bank vs. Deveaux, already cited,

"have never been satisfactory to the Bar, and that they were not, especially the last, entirely satisfactory to the Court that made them. They have been followed always most reluctantly and with dissatisfaction. By no one was the correctness of them more questioned than by the late Chief Justice, who gave them. It is within the knowledge of several of us that he repeatedly expressed regret that those decisions had been made, adding, whenever the subject was mentioned, that if the point of jurisdiction was an original one the conclusion would be different. We think we may safely assert that a majority of the members of this Court have at all times partaken of the same regret, and that whenever a case has occurred on the circuit involving the application of the case of the Bank vs. Deveaux it was yielded to because the decision had been made and not because it was thought to be right.” * * * "The case of the Bank of Vicksburg vs. Slocomb was most reluctantly given upon mere authority. We are now called upon, upon the authority of those cases alone, to go further in this case than has yet been done. It has led to a review of the principles of all the cases. We cannot follow further, and upon our maturest deliberation we do not think the cases relied upon for a doctrine contrary to that which the Court will here announce are sustained by a sound and comprehensive course of professional reasoning."

The Court then expressly decided that

"a corporation created by and doing business in a particular State is to be deemed as a person, although an

'Louisville R. R Co. vs. Letson, 2 How. 550.

artificial person, an inhabitant of the same State for the purposes of its incorporation, and capable of being treated as a citizen of that State as much as a natural person."

212. Presumption of Identical Citizenship of Corporations and Members Held Irrebuttable.-Nine years later the subject was again fully considered by the Supreme Court. One Marshall, a citizen of Virginia, brought suit against the B. & O. R. R. Co. in the Circuit Court of the United States for the District of Maryland. He claimed that the company owed him $50,000 under a special contract for services in procuring the passage, by the Virginia Legislature, of an Act granting it a right of way. In his declaration he said the defendant was a body corporate by the Act of the General Assembly of Maryland. His description of it was of precisely the same character as that which had been held insufficient by the Supreme Court some forty-four years before.1 The Court, however, three of the judges dissenting, said:

1

"It is contended that, notwithstanding the Court in deciding the question of jurisdiction, will look behind the corporate or collective name given to the party to find the persons who act as the representatives, curators or trustees of the association, stockholders or cestui que trusts, and in such capacity are the real parties to the controversy, yet that the declaration contains no sufficient averment of their citizenship." *** “If the declaration sets forth facts from which the citizenship of the parties may be presumed or legally inferred, it is sufficient. The presumption arising from the habitat of a corporation in the place of its creation being conclusive as to the residence or citizenship of those who use the corporate name and exercise the faculties conferred by it, the allegation that the 'defendants are a body corporate by the Act of the General Assembly of Maryland' is a sufficient averment that the real defendants are citizens of that State."2

Hope Insurance Co. vs. Boardman, 5 Cranch, 57.

2 Marshall vs. B. & O. R. R. Co., 16 How. 328.

213. The Modern Doctrine.-The Supreme Court has not thought it best to carry the case of the Louisville R. R. Co. vs. Letson, above cited, to its logical conclusion and to hold that a corporation is a citizen. Such a ruling might embarrass both the States and the Federal Government in dealing with corporate problems. On the other hand, it is highly desirable that the Federal jurisdiction shall extend to cases in which corporations are parties. The Court has solved the difficutly by resorting to the fiction already alluded to. The present doctrine of the Court was stated by it some thirty years ago. It is to the effect that a suit may be brought in the Federal Courts by or against corporation. In such case it is regarded as a suit by or against the stockholders. For the purposes of jurisdiction, it is conclusively presumed that all of them are citizens of the State which by its laws created the corporation.1

This is precisely the same sort of irrebuttable presumption which the Court of King's Bench made that its suitors were in the custody of the warden of the Marshalsea, or the Court of Exchequer that they were debtors to the King. The legal presumption is sometimes very far away from the actual facts.

214. Jurisdiction Cannot Be Created by Organizing a Sham Corporation.-The Supreme Court has, however, intimated that there is such a thing as riding even a good fiction to death.

A couple of ingenious Georgia attorneys thought they could increase their practice if they were in a position to take into the United States Court any ejectment case. They enterea into communication with another ingenious and energetic person. He was a South Dakota lawyer. In three years he had secured for non-residents 985 charters under the laws of his State. Part of his business was to furnish South Dakota incorporators when necessary. Under the name of the Southern Realty Investment Co., a South Dakota cor

1 Muller vs. Dows, 94 U. S. 445.

poration was formed which had a president and a board of directors, all of whom were citizens of Georgia. Two of the five directors were the Georgia attorneys; one was their female stenographer. The president and a majority of the directors were the holders each of only one share of stock; and that donated. They recognized it to be their duty to represent the Georgia attorneys and to obey their will implicitly. The company, in respect of all its business, was the agent of those attorneys to do their bidding. Its president testified that he did not know for what purpose the company was really organized, or that it had ever done any business except to bring certain ejectment suits in the United States Court, or that it had any money. Its place of business in Georgia was in the office of the Georgia attorneys. Its pretended place of business in South Dakota was in what is called a domiciliary office, maintained by the attorney in that State who procured its charter. In the latter office the Supreme Court remarked there could have been found, no doubt, a desk and a chair or two, but no business. The company's president never knew of its doing any business in South Dakota. The Supreme Court held, that it must be deemed a mere sham; that the actual parties to the suit were the citizens of Georgia for whose real benefit the litigation was being carried on, and that the United States Court had no jurisdiction.1

215. The Fiction Does Not Extend to Joint Stock Companies or Limited Partnerships.-The Supreme Court has, moreover, shown that it is not willing to extend the legal fiction to organizations which are not corporations in every sense of the word. It has expressly decided that joint. stock companies and limited partnerships are not entitled to the benefit of the presumption.

The United States Express Company brought a suit in the United States Circuit Court for the Northern District of Illinois. It described itself as a joint stock company organ

'Southern Realty Investment Co. vs. Walker, 211 U. S. 603.

ized under the laws of the State of New York and a citizen of that State. The defendant was described as a citizen of Illinois. The question of jurisdiction was not raised below. Neither of the parties suggested it in the Supreme Court, but the latter of its own motion held that there was no jurisdiction. It said the

"allegation that the company was organized under the laws of New York is not an allegation that it is a corporation. In fact, the allegation is that the company is not a corporation, but a joint stock company—that is, a mere partnership."***"Although it may be authorized by the laws of the State of New York to bring suit in the name of its president, that fact cannot give the company power by that name to sue in a Federal Court. The company may have been organized under the laws of the State of New York and may be doing business in that State, yet all the members of it might not be citizens of that State. The record does not show the citizenship" ***"of any of the members of the company. They are not shown to be citizens of some State other than Illinois."1

216. New Equity Rule 37.-New Equity Rule 37 provides among other things, that every action shall be prosecuted in the name of the real party in interest, but that an executor, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute, may sue in his own name without joining with him the party for whose benefit the action is brought.

Possibly under this rule it will be held that on the equity side a suit may hereafter be maintained by someone authorized by a State statute to sue on behalf of a joint stock company or a limited partnership, provided the citizenship of such plaintiff be different from that of any of the defendants. The rule may be construed to make the citizenship of the persons for whom he sues immaterial.

1 Chapman vs. Barney, 129 U. S. 677; Great Southern Fire Proof Hotel Co. vs. Jones, 177 U. S. 450.