not, a suit so brought must be removed thereto: Le Breton v. Superior Court, 66 Cal. 30, 4 Pac. 777; Ah Fong v. Sternes, 79 Cal. 33, 21 Pac. 381; Smith v. Smith, 88 Cal. 572, 26 Pac. 356; Warner v. Warner, 100 Cal. 11, 16, 34 Pac. 523.

6. Facts of defense not required to be set forth.-An affidavit of merits need not state the facts constituting a meritorious defense, but such affidavit should state in substance that affiant has fully and fairly stated the facts of the case to his counsel, and that such counsel had advised him that he has a good legal and meritorious defense. But where the court below seems to have been satisfied with an affidavit merely stating, in this respect, "that the defendant has a good legal and meritorious defense," there is no such abuse of discretion as would justify the appellate court in reversing an order made thereon, especially where such reversal would operate as a final bar to any defense on the part of the defendant: Howe v. Coldren, 4 Nev. 171, 177.

7. Demand and affidavit are essential. --Where a party fails at the time of interposing his demurrer to file an affi lavit of merits and a demand in writing for a change of the place of trial of the action, he thereby waives his right to such change, even if the facts in reality entitle him to a change: Bell v. Camm, 10 Cal. App. 388, 102 Pac. 225, 226, citing Cook v. Pendergast, 61 Cal. 78.

8. Affidavit of merits by counsel.-The propriety of counsel for a party making an affidavit as to the merits or legality of the defense is often called in question. Where counsel makes such an affidavit, the better practice would require that he, as affiant, in setting out that the defendant has a good legal and meritorious defense, allege or show in some way that he, as counsel, knows or is familiar with the facts in the case: Howe v. Coldren, 4 Nev. 171, 177.

9. An affidavit of merits in which the affiant, among other things, sets forth, "And after such statement I am advised, and verily believe, that I have a good defense on the merits to this action," etc.; held defective, upon the ground that the affiant should have stated that he was advised by his counsel that he had a good defense: Grangers' Union v. Ash, 12 Cal. App. 143, 106 Pac. 889, 890. [Author's note: Of this decision it might

well be said, "More subtile web Arachne can not spin." Where the affiant states, as in this case, that he had "fully and fairly stated the case to his counsel," naming him, and "after such statement I am advised," etc., it would hardly seem to require the services of a sleuth to discover who gave the advice.]

10. "Residence" of domestic trading corporation.-A domestic trading corporation resides, within the meaning of section 3951 of the California Code of Civil Procedure, in the county where its principal place of business is, and such place is where designated by its articles of incorporation: Jenkins v. California Stage Co., 22 Cal. 537; Cohn v. Central Pacific R. Co., 71 Cal. 488, 12 Pac. 498; McSherry v. Penn Co., 97 Cal. 637, 32 Pac. 711; Buck v. Eureka, 97 Cal. 135, 140, 31 Pac. 845, 846; Trezvant v. Strong, 102 Cal. 47, 36 Pac. 395.

In

11. Foreign corporation.-Venue of actions against.-The rule is different with respect to the right of foreign corporations to change the place of trial. the absence of any statutory provision fixing the place of trial, in actions against foreign corporations, such action may be brought and maintained in any county of the state. A foreign corporation exists in and by virtue of the law of the foreign country, and no statute of another state can give a local residence to such corporation where alone it can be sued. Its liability to be sued in the courts of such latter state no more confers a comity residence upon it than does the comity which permits it to apply to its courts for the enforcement of a contract for the redress of a wrong: Thomas v. Placerville G. Q. M. Co., 65 Cal. 600, 4 Pac. 641, 643; AngloCalifornian Bank v. Field, 146 Cal. 644, 650, 80 Pac. 1080; Waechter v. Atchison etc. R. Co., 10 Cal. App. 70, 101 Pac. 41. 42; Boyer v. Northern Pacific R. Co., 8 Idaho 74, 66 Pac. 826, 70 L. R. A. 691; Olson v. Osborne, 30 Minn. 444, 15 N. W. 876.

As to right of foreign corporations, in respect to change of place of trial on the ground of residence, see Waechter v. Atchison etc. R. Co., 10 Cal. App. 70, 101 Pac. 41, 42.

12. Affidavit of officer as to residence. -An affidavit of an officer of a foreign corporation, without sanction of the statute for such a proceeding, can not be held to admit such a corporation to

the constitutional rights and privileges of a domestic corporation with respect to its principal place of business for the purpose of establishing its residence in another state: Waechter v. Atchison etc. R. Co., 10 Cal. App. 70, 101 Pac. 41, 43.

13. Application for removal of cause to federal court.-It has been held, where a petition for removal of a cause from a state to the federal court is made and based upon the theory that the cause of action or controversy involved is separable with reference to the parties joined as defendants, and that, although one of the defendants was a citizen of Colorado, the remaining defendant was a Wyoming corporation, such application is properly denied where the matters alleged in the complaint constitute concurrent acts of negligence against the defendants, and where on the face of the complaint it can not be said that the controversy is separable: Stratton Cripple Creek etc. Co. v. Ellison, 42 Colo. 498, 94 Pac. 303, 305, (negligence resulting in personal injuries suffered in a mine).

14. Citizenship, diversity of. To render an action removable to the federal court on the ground of alleged diversity of citizenship, is not enough to aver generally that plaintiff [or defendant] is not a citizen of a particular state, or not of the state in which the suit is pending: Cameron v. Hodges, 127 U. S. 322, 8 Sup. Ct. 1154, 32 L. ed. 132.

15. Distinct statements of the citizenship of the parties, and of the particular state in which it is claimed such citizenship exists are required: Cameron v. Hodges, 127 U. S. 322, 8 Sup. Ct. 1154, 32 L. ed. 132; O'Connor v. Chicago etc. Co. (Iowa), 122 N. W. 947, 949.

16. Averment as to controversy between citizens of different states.-To aver that the controversy is between citizens of different states is but a con

clusion, where it precedes specific allegations of facts by way of explanation, or follows them as an inference to be drawn therefrom: O'Connor v. Chicago etc. Co. (Iowa), 122 N. W. 947, 949, citing Neel v. Penn Co., 157 U. S. 153, 15 Sup. Ct. 589, 39 L. ed. 654; Continental Life Ins. Co. v. Rhoads, 119 U. S. 237, 7 Sup. Ct. 193, 30 L. ed. 380; Grace v. American Central I. Co., 109 U. S. 278, 3 Sup. Ct. 207, 27 L. ed. 932.

17. Citizenship distinguished from residence.-Citizenship can not be inferred from an averment as to residence, for the reason that a person may be a citizen of a state although a resident of another: Continental Life I. Co. V. Rhoads, 119 U. S. 237, 7 Sup. Ct. 193, 30 L. ed. 380; O'Connor v. Chicago etc. Co. (Iowa), 122 N. W. 947, 950.

18. Mandamus to secure change of venue.-Mandamus lies to compel a judge to grant a change of venue where the moving party has a clear legal right thereto: State v. Dick, 103 Wis. 407, 79 N. W. 421, construing § 3069 Rev. Stats. 1898, under which an order denying change of venue is unappealable. See Gamble V. First Judicial Dist. Court, 27 Nev. 233, 74 Pac. 530. Compare People v. Church, 103 Ill. App. 132: Galbraith v. Williams, 21 Ky. Law Rep. 79, 106 Ky. 431, 50 S. W. 686. So, also, mandamus will lie to compel the court to hear and determine a motion for change of venue to the county of defendant's residence: Hennessy v. Nicol, 105 Cal. 138, 142, 38 Pac. 649.

19. Right not affected by special appearance. A special apearance by motion to strike out portions of the complaint made before or at the time of filing the demurrer is not such an appearance and submission to the court's jurisdiction as constitutes a waiver of the right to move for a change of venue: Wood v. Herrman Min. Co., 139 Cal. 713, 717, 73 Pac. 538.