But the fact that

and a majority of the stockholders,' or the unlawful voting by an outside corporation of a majority of the stock of the complainant's corporation, when the former has already constituted its friends a majority of the board of the latter, may be restrained without previous request to sue. a majority is apparently against the party desiring to bring suit, is not sufficient to excuse failure to make a request that the corporation act in the matter. So also where, although a corporation has expired by lapse of time, if it still exists for the purpose of winding up; and although most of the directors are dead, if one of them survives, application should be made to him to bring the suit, or an effort should be made to call together the stockholders and obtain united action in support of a claim. An allegation that the stockholders repeatedly protested against the evils complained of, without averring that their protests were made to the directors, is entirely insufficient to authorize them to sue. Again, where two of the three directors voted against bringing any suit, alleging, as the ground for their action, that they feared they could not obtain justice in the State courts, while the third director, a non-resident, was willing to trust the local courts, upon suit brought in the federal court by him the next day

1 Nathan v. Tompkins, 82 Ala. 437.

146 Mass. 495. Nor can stockholders of a company, without a like de

2 Mack v. DeBardlaben, (Ala. 1890) mand upon it and refusal, sue an8 Ry. & Corp. L. J. 394.

3 Thus a stockholder can not sue the manager until he has tried to obtain his rights within the corporation, even though the manager owns a majority of the stock and elects a majority of the directors. Allen v. Wilson, 28 Fed. Rep. 677. And a stockholder, complaining of misconduct of the treasurer of a corporation, is not excused from applying to the directors to bring suit, before bringing it himself, by the fact that the treasurer owns the majority of the stock, though that fact does excuse him from applying to a stockholders' meeting. Dunphy v. Travelers' Newspaper Assoc., (1888)

other company, which is charged with wrongfully interfering with the rights of their company, simply because a majority of their directors are stockholders to a larger extent in the defendant company than in their own, and a minority are also directors in the defendant company. Boyd v. Sims, (1889) 87 Tenn. 771; Huntington v. Palmer, 104 U. S. 482; Gas Co. v. Williamson, 9 Heisk. 314, 338; Deaderick v. Wilson, 8 Baxt. 131.

4 Taylor v. Holmes, (1888) 127 U. S. 489.

5 Boyd v. Sims, (1889) 87 Tenn. 771.

after the vote, it was held that the refusal was not so clearly real and persistent as to give him authority to sue on behalf of the corporation.1

§ 887. Acquiescence and delay. The right to restrain corporate acts ceases when the members have consented to the will of the majority. Acquiescence and the receipt of money from the corporation by reason of the illegal acts, will prevent the stockholder from impeaching its legality. Consent may be either express or inferred from the acquiescence of the shareholders after full knowledge of the transaction,* or it may be implied by their silence for a long period of time. Accordingly, to maintain a bill for fraud, conspiracy or ultra vires acts, against the corporation, its officers and others who participate therein, the stockholders must act promptly or forfeit their right to equitable relief." They can

1 Detroit v. Dean, 106 U. S. 537. Acc. Hawes v. Oakland, 104 U. S. 450; Huntington v. Palmer, 104 U. S. 482. In a case where the only effort appearing to have been made to induce the corporation to assert its rights consisted of a written demand sixteen days before suit brought, and where the facts justified the inference of an attempt by a simulated arrangement to foist upon the federal court jurisdiction of a case not belonging to it, the court refused to consider the complaint. City of Quincy v. Steel, (1887) 120 U. S. 214.

2 Leo v. Union Pacific Ry. Co., 19 Fed. Rep. 283. Where a stockholder buys into a railroad corporation, with knowledge that it is acting on an assumed power to invest in the stock of railroad corporations outside the State of its creation, his purchase under these circumstances will be regarded as an implied recognition of the assumed power. Venner v. Atchison &c. R. Co., 28 Fed. Rep. 581.

Alexander v. Searcy, (1889) 81 Ga. 536; s. c. 12 Am. St. Rep. 337.

Evans v. Smallcombe, L. R. 3 H. L. 249, affirming L. R. 3 Eq. 769.

Allen v. Wilson, 28 Fed. Rep. 677; Graham v. Boston &c. R. Co., 118 U. S. 161; Pneumatic Gas Co. v. Berry, 113 U. S. 322; Kitchen v. St. Louis &c. R. Co., 69 Mo. 224; International &c. R. Co. v. Bremond, 53 Tex. 96; Royal Bank v. Grand Junction R. Co., 125 Mass. 490; In re Pinto &c. Co., 8 Ch. Div. 273; In re Magdalena &c. Co., 6 Jur. N. S. 975; Harwood v. Railroad Co., 17 Wall. 78; Badger v. Badger, 2 Wall. 87; Boardman v. Lake Shore &c. Ry. Co., 84 N. Y. 157; Rochdale Canal Co. v. King, 2 Sim. N. S. 89; Shelden &c. Co. v. Eickemeyer &c. Co., 90 N. Y. 607; Alexander v. Searcy, (1889) 81 Ga. 536; Gifford v. New Jersey R. Co., 10 N. J. Eq. 171; Boston &c. R. Co. v. New York &c. R. Co., 13 R. I. 260; Ashhurst's Appeal, 60 Pa. St. 290.

6 Alexander v. Searcy, (1889) 81 Ga. 536; s. c. 12 Am. St. Rep. 337; Dimpfell v. Ohio &c. R. Co., 110 U. S. 209; Peabody v. Flint, 88 Mass. 54; Dumphy v. Travelers' Newspaper

not, however, be charged with acquiescence by remaining still while some of their number are seeking to impeach the transactions. The weight which is due to mere lapse of time, varies with the extent of the interests involved, and the circumstances of each particular case.2

ated by a State is a citizen of that State within the meaning of the constitution and statutes defining the jurisdiction of the federal courts,' even if all its business is transacted elsewhere, and all of its offices and places of business are outside of the State. And the members of a foreign corporation, where it sues or is sued in a United States court, are conclusively presumed to be citizens of the State or country which created it.3 An allegation that a corporation is doing business in a certain State does not necessarily import that it was created by the

1 State of Wisconsin v. Pelican Ins. Co., (1888) 127 U. S. 265. Where a citizen of Louisiana brings suit in the State court against a corporation, alleging that defendant is incorporated under the laws of the State, an affidavit for removal to the federal court, on the ground of diverse citizenship of the parties, which merely alleges that the corporation is a citizen of another State, and does not allege that the corporation is not domiciled in Louisiana, is insufficient. Guinault v. Louisville &c. R. Co., (La. 1890) 6 So. Rep. 850.

2 Pacific R. Co. v. Missouri Pacific Ry. Co., (1885) 23 Fed. Rep. 565.

3 National S. S. Co. v. Tugman, 106 U. S. 118. A corporation can not acquire a residence in a State other than one in which it is incorporated, within the meaning of the act of congress which provides that, "when the jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought only in the district of the residence of either plaintiff or defendant." Booth v. St. Louis &c. Manuf. Co., (1889) 40 Fed. Rep. 1.

laws of that State and is a citizen thereof.1 So also the buying and making use of property by a corporation in another State than that in which it was incorporated, under enabling acts of that State, does not make it a corporation of the latter.? It has been decided that a corporation created by the consolidation of several corporations existing in different States, by an act of the legislature, which provided that it should be treated as a corporation created by the laws of the State authorizing the consolidation, is, as concerns a suit against it by an alien, a citizen of that State, and not entitled to a removal of the suit under the local prejudice clause of the Removal of Causes Act. And when the charter of a corporation in one State is duplicated in another State, and the legislature assumes to create a home corporation, the effect is to consolidate the two; but for purposes of jurisdiction it is a separate corporation within the State of its adoption. In such a case separate organization is not necessary.1

§ 889. Service of process. Valid service upon foreign corporations may be made upon their managing agents, under the New York code. In that State a general agent of the passenger department of a foreign railway, may be served with process intended for the corporation. And in a local action for penalties for stamping articles as patented, without license, recoverable only in the district where the stamping is done, an agent of a foreign corporation who has the general management and control within the district of the manufacturing business in the course of which the stamping is done, managing agent" of the corporation within the meaning of the code, and service upon him is a valid service upon the corporation. So also service upon a managing agent for a State of a foreign corporation, is sufficient under acts providing that service may be made upon local agents in the

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1 Brock v. Northwestern Fuel Co., (1889) 130 U. S. 341.

2 Wilkinson v. Delaware &c. R. Co., 22 Fed. Rep. 353.

3 Cohn v. Louisville &c. R. Co., 39 Fed. Rep. 227.

4 Blackburn v. Selma &c. R. Co., 2 Flip. 525.

5 E. g. N. Y. Code Civ. Proc. $432.

6 Tuchband v. Chicago &c. R. Co., (1889) 115 N. Y. 437.

7 Hat-Sweat Manuf. Co. v. Davis &c. Co., 31 Fed. Rep. 294.