served within the Northern District of Illinois by delivering a copy of the same "to Albert M. Babb, agent for the Hammond Elevator Company at Peoria," and also "by reading the same to and within the presence and hearing of John L. Dickes, a member of the firm of Battle & Dickes, agents of said company," as well as upon Battle. On the day following the service the elevator company entered a special appearance, and moved the court to set aside the service of the subpœna by the marshal, on the ground that the return was untrue in fact and insufficient in law, and prayed judgment of the court whether it should be compelled to appear or plead to the bill of complaint, because it had not been served with process, and because the defendant was not at the date of filing the bill, or at any other time, within the State of Illinois; that it is not a resident of such State, but is a Delaware corporation, and its principal place of business is outside the State of Illinois.

This motion of the elevator company was referred to a master to take testimony, and report the same with his conclusions of law. The master filed his report in the Circuit Court, recommending that the motion of the defendant to quash the service of process be sustained; whereupon counsel for plaintiff stated in open court that he was unable to make any other or different service upon the defendant, and it was ordered that the bill be dismissed as to the Hammond Elevator Company. The bill was also dismissed as to the Western Union Telegraph Company, which had been made a party by an amendment to the original bill. Thereupon appellant appealed to this court upon the same question of jurisdiction, praying that the appeal be allowed and said question be certified, which was done.

Mr. Henry S. Robbins for appellant:

The record presents a question of jurisdiction within § 5 of the act of 1891. O'Neal v. United States, 190 U. S. 36.

This court has uniformly upheld its jurisdiction to review,

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upon direct appeal or writ of error under section 5, any question of jurisdiction-whether of the subject matter; Wetmore v. Rymer, 169 U. S. 115; Huntington v. Laidley, 176 U. S. 668; Interior Construction Co. v. Gibney, 160 U. S. 217, or of the person of the defendant. Shepard v. Adams, 168 U. S. 618; Societe Fonciere v. Milliken, 135 U. S. 304; Conley v. Mathieson Alkali Works, 190 U. S. 406; Goldey v. Morning News, 156 U. S. 518. Conversely the Circuit Courts of Appeals declined to entertain such cases. Compress Co. v. American Co., 125 Fed. Rep. 196.

As to the phrase "in such cases the question of jurisdiction alone shall be certified," see act of April 29, 1802, ch. 31, § 6; § 652 of the Rev. Stat., act of June 1, 1872, which required the question certified upon a disagreement of the judges to be a single and specific question of law and not questions of fact, and the certificate was required to state the facts or parts of the record necessary to properly present that question. California Paving Co. v. Molitor, 113 U. S. 609. The certificate was the only record in this court and was required to be complete in itself, subject to the right of this court to order up the record itself.

At first the expressions of this court seemed to indicate that §5 of the act of 1891 contemplated this kind of a certificate. Maynard v. Hecht, 151 U. S. 324. Then a difference was noted between requiring a certificate, which should state the question to be decided and all of the case that was necessary to decide it, and one whose only purpose was to establish a fact, upon which this court's jurisdiction depended.

Congress by $5 undoubtedly contemplated only a certificate of the second kind.

This court, under $5, has not only reviewed jurisdictional cases involving questions of fact, and of mixed law and fact, Wetmore v. Rymer, 169 U. S. 115; Conley v. Mathieson Alkali Works, 190 U. S. 406; Geer v. Same, 190 U. S. 428, but has also held that there need not in some cases be any certificate at all; but that the question may appear either "by the terms

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of the decree appealed from and of the order allowing the appeal, or by a separate certificate of the court below;" and that, where the judgment was for defendant upon a preliminary defense of a want of jurisdiction,-the question of jurisdiction being thus the only one involved,—and the appeal is allowed upon this question alone, no certificate is necessary. United States v. Jahn, 155 U. S. 109; In re Lehigh Min. & Mfg. Co., 156 U. S. 322; Shields v. Coleman, 157 U. S. 168; Interior Construction Co. v. Gibney, 160 U. S. 217; Smith v. McKay, 161 U. S. 355; Huntington v. Laidley, 176 U. S. 668; Excelsior Co. v. Pacific Co., 185 U. S. 282; Arkansas v. Schlierholz, 179 U. S. 598; Courtney v. Pradt, 196 U. S. 89.

This record, as already shown, more than meets the requirements of these cases, as respects the certification of the question of jurisdiction.

The service in this case was adequate.

The undisputed facts show that, at the time of the service of process, the Hammond Company was, in contemplation of the law, transacting business in Illinois through these correspondents as its agents, so as to make service upon either of them a valid service upon it.

The question is what is the real relation of the parties to each other and the business. Italian-Swiss Colony v. Pease, 194 Illinois, 98; Conn. Mut. Ins. Co. v. Spratley, 172 U. S. 602, 615; Norton v. Atchison R. R. Co., 61 Fed. Rep. 200; Smith v. West. Un. Tel. Co., 84 Kentucky, 664; Central Stock Exchange v. Board of Trade, 196 Illinois, 396; Cone v. Tuscaloosa Co., 76 Fed. Rep. 891.

Under the circumstances public policy will not permit the defendant to claim that these correspondents are not its agents, thus enabling it to enjoy the privileges of extending its business into Illinois, without incurring a corresponding liability to be sued there.

To constitute a legal service of mesne process on a corporation of another State (1) the writ must be personally served within the jurisdiction, upon its officer or agent, and (2) the

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company must, within the contemplation of the law, be doing business within the State.

As a foreign corporation enters a State only by comity and not by right, Paul v. Virginia, 8 Wall. 168, the Illinois statute, Rev. Stat., ch. 32, § 26, is a lawful enactment and authorizes service of process upon any agent, C. & R. I. R. R. v. Fell, 22 Illinois, 333. It differs from the statutes of some States, which require service upon the "general," or "managing," or "business," agent. This statute applies to foreign corporations. Midland Pac. Ry. Co. v. McDermid, 91 Illinois,

170.

Liability to be sued and served like a home corporation, is one of the liabilities that Illinois, by § 26, imposes upon foreign corporations as a condition of doing business in the State. Wilson Packing Co. v. Hunter, 8 Biss. 429; Barrow Steamship Co. v. Kane, 170 U. S. 100.

By availing itself of the privilege of doing business in a State, a foreign corporation impliedly assents to be there sued and served in the mode provided by the state statute, provided this does not violate the fundamental principle that requires notice of a suit before a party can be bound by it. St. Clair v. Cox, 106 U. S. 350; Railroad Company. v. Harris, 21 Wall. 65, 81; Ex parte Schollenberger, 96 U. S. 369; Mer-. chants' Manufacturing Co. v. Grand Trunk Ry. Co., 13 Fed. Rep. 358; Amy v. Watertown, 130 U. S. 301; Shepard v. Adams, 168 U. S. 618.

In admiralty suits,—which, like equity cases, are not within the statute requiring conformity with the state practice,service upon a foreign corporation under the state law is sufficient. In re Louisville Underwriters, 134 U. S. 488; Doe v. Springfield B. & M. Co., 104 Fed. Rep. 684. In chancery cases service of process under the state law is sustained. Evansville Courier Co. v. United Press, 74 Fed. Rep. 918; McCord Lumber Co. v. Doyle, 97 Fed. Rep. 22.

As to the other requisite of a legal service which is that the foreign corporation must be doing business within the State,

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and what is a sufficient doing of business within the State, see St. Clair v. Cox, 106 U. S. 350; Connecticut Ins. Co. v. Spratley, 172 U. S. 615; In re Hohorst, 150 U. S. 653; Block v. Railroad Co., 21 Fed. Rep. 529; Denson v. Chattanooga Assn., 107 Fed. Rep. 777; U. S. Savings & L. Co. v. Miller, 47 S. W. Rep. 17; Van Dresser v. Oregon R. & N. Co., 48 Fed. Rep. 202; Palmer v. Chicago Herald Co., 70 Fed. Rep. 886; Locke v. Chicago Chronicle Co., 107 Iowa, 390. Furthermore the Hammond Company is transacting business in Illinois, because its bets with these traders are Illinois contracts.

An offer becomes a contract, as soon as the acceptance is committed to the regular mail, or a telegraph company. But, according to the better reasoned cases, the rule is otherwise when the acceptor commits his acceptance to his own agent or an agency within his control. In re London & Northern Bank, L. R. (1900) 1 Ch. Div. 220; Thayer v. Middlesex Mut. Fire Ins. Co., 27 Massachusetts, 325; Bryant v. Booze, 55 Georgia, 438.

See cases holding mail contracts with insurance companies to be contracts of the State of the applicant, despite recitals in the policies seeking to make them contracts of the State of the company's home office. Equitable Life Assurance Soc. v. Clements, 140 U. S. 226, 232; Wall v. Equitable Life Assurance Soc., 32 Fed. Rep. 273; Hicks v. National Life Ins. Co., 60 Fed. Rep. 690; Equitable Life Assurance Soc. v. Winning, 58 Fed. Rep. 541; Berry v. Knight Templars, 46 Fed. Rep. 439; Fletcher v. N. Y. Life Ins. Co., 13 Fed. Rep. 526; Mut. Ben. Life Ins. Co. v. Robinson, 54 Fed. Rep. 580. See also Ransome v. State, 91 Tennessee, 716; Boyd Co. v. Coates, 24 Ky. L. R. 730; Central Stock Exchange v. Bendinger, 109 Fed. Rep. 926, which are on "all fours" with this case.

Mr. Lloyd Charles Whitman, with whom Mr. Jacob J. Kern and Mr. John A. Brown were on the brief, for appellee: The order of February 23, 1904, dismissing the bill as to the Western Union Telegraph Company without prejudice