3

shal of the district or his deputy, or by some other person specially appointed by the court for that purpose, and not otherwise. "When the marshal or his deputy is a party in any cause, the writs and præcepts therein shall be directed to such disinterested person as the court or any justice or judge thereof may appoint, and the person so appointed may execute and return them." If the marshal or his deputy make the service, his unverified return is sufficient, and it has been said cannot be contradicted, the only remedy being an action against the officer for a false return. But it is capable of subsequent amendment. Where there has been personal service upon the defendant by a special deputy, the fact that the return was in the name of such deputy instead of in the name of the marshal was held an irregularity which did not avoid the judgment when attacked in a collateral proceeding. It has been held that the return to a State court by a sheriff cannot be amended after a removal.10 The return should state where the service was made, if the defendant reside without the district," and

court whence it issued. Butterworth v. Hill, 114 U. S. 128, 132, 133. A case at Circuit holds that an acceptance of due service of process amounts to no more than personal service at the place where the acceptance is made, and is not a waiver of the objection that the defendant is not an inhabitant of the district. U. S. v. Loughrey, 43 Fed. R. 449.

3 Equity Rule 15; Deacon v. Sewing M. Co., 14 Rep. 43. A copy of an order, that non-resident defendants appear and plead before a day specified therein, served under an order for substituted service, may be served by any one, although the usual practice is to serve it by a deputy marshal of the district where the defendants are found. Forsyth v. Pierson, 9 Fed. R. 801. It was held that the marshal might give an attorney an appointment of a special deputy with the name in blank with oral permission to the attorney to fill in the same. Jewett v. Garrett, 47 Fed. R. 525. 4U. S. R. S., § 922.

9

5 Von Roy v. Blackman, 3 Woods, 98, 101; Phoenix Ins. Co. v. Wulf, 1 Fed. R. 775; Equity Rule 16. Where the defendant was named in the bill as Jacob Kraig, a return that the subpoena had been served on Jacob King was held insufficient. McClaskey v. Barr, 45 Fed. R. 151.

6 Von Roy v. Blackman, 3 Woods, 98, 100. It has been held by the Circuit Court for the District of Indiana, following an Indiana statute, that the return cannot be contradicted. Joseph v. New Albany F. & R. Mill Co., 53 Fed. R. 180. But see McClaskey v. Barr, 45 Fed. R. 151. 7 Von Roy v. Blackman, 3 Woods, 98, 100.

8 Phoenix Ins. Co. v. Wulf, 1 Fed. R. 775.

9 Hill v. Gordon, 45 Fed. R. 276. 10 Tallman v. B. & O. R. Co., 45 Fed. R. 156: infra, § 391.

11 Allen v. Blunt, 1 Blatchf. 480, 487; Thayer v. Wales, 5 Fisher's Pat. Cas. 448.

probably in any event. If another than the marshal or his deputy serve the subpoena, proof must be made by the affidavit of the process-server.12 "The service of all subpoenas shall be oy a delivery of a copy thereof by the officer serving the same to the defendant personally, or by leaving a copy thereof at the dwelling-house or usual place of abode of each defendant with some adult person who is a member or resident of the family." 13 When a husband and wife are parties a copy must be served upon each, although the former practice was complied with by service upon the husband alone." When a defendant was sued both individually and in a representative capacity, it was held that only one copy of the subpoena need be left with him.15 Service at the door of the defendant's dwelling has been held a sufficient compliance with the rule.16 In an English case, where infant defendants were secreted, service upon their mother was allowed, and held sufficient." Where a guardian ad litem has been appointed it will be presumed, in the absence of evidence to the contrary, that his wards were duly served.18 Chief Baron Gilbert, in his "Forum Romanum," says of the subpoena: "The service is good in the night or on Sunday, if it be before the time of the return; for this being only process of notice, and not to arrest the parties, it can create no disturbance, though it be served in the night or on Sunday." 19 It has, however, since been held in England that a service on Sunday may be set aside.20 A decision at Circuit holds that, in an extraordinary case, a warrant of arrest in admiralty can be issued on Sunday." Personal service of the subpoena cannot,

12 Equity Rule 15.

13 Equity Rule 13. See Phoenix Ins. Co. v. Wulf, 1 Fed. R. 775; Hyslop v. Hoppock, 5 Ben. 447.

14 O'Hara v. MacConnell, 93 U. S. 150; Robinson v. Cathcart, 2 Cranch C. C. 590.

15 Cornell v. Green, 88 Fed. R. 821; S. C. in C. C. A., 95 Fed. R. 334.

16 Phoenix Ins. Co. v. Wulf, 1 Fed. R. 775. For cases where the proof of service was held insufficient, see Blythe v. Hinckley, 84 Fed. R. 228; Swift v. Meyers, 37 Fed. R. 37.

William Allen Butler, in a learned opinion when referee, held that, where a guardian ad litem was appointed, service of a subpoena upon his infant ward was not indispensable to the jurisdiction. Sloane v. Martin, 77 Hun, 249. See supra, § 39. 18 Sloane v. Martin, 77 Hun (N. Y.), 249. See supra, § 39.

19 Gilbert's Forum Romanum (Tyler's ed.), 42.

20 Mackreth v. Nicholson, 19 Ves.

367.

21 Pearson v. The Alsalfa, 44 Fed.

17 Smith v. Marshall, 2 Atk. 70. Mr. R. 358 (U. S. D. C. D., S. C.).

22

in the absence of any special statutory provision, be made beyond the territorial jurisdiction of the court; except that in a case of a local nature, at law or in equity, where the land or other subject-matter of a fixed nature, such as a railroad, is in both districts of the same State or is situated entirely in either district of a State which is divided into two or more districts, a defendant resident therein may perhaps be served by the marshal of any district in that State where he resides. It has been held that a suit brought solely for the purpose of appointing a receiver of a railroad, with an injunction against its creditors, a suit to determine the rightful owners of a fund in court,25 and a suit by the United States to determine the right of an Indian tribe to a fishery,26 are such cases of a local nature. In other cases where a State is divided into two or more districts the defendant cannot be served out of the district.27

24

When a petition is filed by a district attorney of the United States praying an injunction against a combination in restraint of commerce among the several States or with foreign nations, the subpoena may be served by leave of the court in any district by the marshal thereof." In suits for the infringement of patents, service may be made in the district where the suit is brought upon any agent of the defendant engaged in conducting the defendant's business there, provided that the defendant has a regular place of business in the district and has committed acts of infringement there.29 At common law, where the State statutes permit the practice,30 and in equity by leave of the court, a receiver of a foreign railroad company may be served by leaving the writ with one of his station agents. A subpoena will not be set aside because addressed to a non-resident over whom the court could exercise jurisdiction with his consent, but not otherwise, although the service upon him.

22 Toland v. Sprague, 12 Pet. 300, 328; Picquet v. Swan, 5 Mason, 35; Bourke v. Amison, 32 Fed. R. 710; Butterworth v. Hill, 114 U. S. 128. 23 U. S. R. S., SS 741, 742. See supra,

$ 22.

24 East Tenn., V. & G. R. Co. v. Atlanta & T. F. R. Co., 49 Fed. R. 508.

25 Winter v. Ludlow, 3 Phila. 464.

26 U. S. v. Winans, 73 Fed. R. 72. 27 Galveston, H. & S. A. Ry. Co. v. Gonzales, 151 U. S. 496. But see Winter v. Ludlow, 3 Phila. 464. 28 26 St. at L., § 5, 210.

29 20 St. at L., p. 695; supra, § 22. 30 Eddy v. Lafayette, 163 U. S. 456. 31 Central Tr. Co. v. St. L, A. & T. Ry. Co., 40 Fed. R. 426.

32

33

might be set aside. A motion to set side the service, or a motion to quash the return," accompanied by a special appearance for that purpose," is the proper method of testing the sufficiency of the service; unless the defendant prefers to disregard it and subsequently to raise the objection upon an appeal from the decree, or to resist the execution of the decree as void.37 "Upon the return of the subpoena as served and executed upon any defendant, the clerk shall enter the suit upon his docket as pending in the court, and shall state the time of the entry.” If the United States is

36

2

938

95. Service upon corporations. sought to be made a party defendant, the subpoena should be served upon the Attorney-General or the District Attorney of the district where the suit is brought. "When process at common law or in equity shall issue against a State, the same shall be served on the Governor, or chief executive magistrate, and Attorney-General of such State." When a suit is brought against a domestic corporation, that is, one chartered within the State which contains the district where the suit is brought, the subpoena should be served upon one of its officers; or, where that is impossible, by leaving a copy at its principal place of business; or where it has no place of business nor officers within the State, by service upon its managing agents, or where there is no agent there, perhaps upon one of its stockholders. The State practice in such cases, although not binding upon the Federal courts in equity, furnishes a guide which they are apt to follow. It has been held in Pennsylvania, that, in the absence of an express provision in its charter, a corporation created by an act of Congress can be sued by service upon its

32 Mason v. N. Y. Steam Power Co., 87 Fed. R. 241.

33 Ibid.; Bourke v. Amison, 32 Fed. R. 710.

2 Supreme Court Rule 5; Grayson v. Virginia, 3 Dall. 320; supra, § 14. 3 Daniell's Ch. Pr. (1st Am. ed.) 564. "If a bill be filed against a corpora

34 Am. Cereal Co. v. Eli P. C. Co., tion the process must be served upon

70 Fed. R. 276.

35 Infra, §§ 100, 101.

36 O'Hara v. McConnell, 93 U. S. 150; Butterworth v. Hill, 114 U. S. 128.

some one of the members." Citing Hinde's Ch. Pr. 87, which uses the same words. But see St. Clair v. Cox, 106 U. S. 353, 359; Rand v. Proprietors, etc. Co., 3 Day (Conn.), 441;

37 Meyer v. Kuhn (C. C. A.), 65 Fed. O'Brien v. Stair's F. & T. C. Co., 10

president in any State. An irregularity in service upon the agent of a corporation may be validated by his admission of service.6

When the jurisdiction rests solely upon the existence of a Federal question in a case which is not brought for the infringement of a patent, nor against a surety company, nor under the statute against combinations in restraint of commerce, a Circuit Court of the United States has no jurisdiction over a foreign corporation' which is not an alien. But when the defendant is an alien corporation, or when jurisdiction is claimed on account of a difference of citizenship, a foreign corporation may be served with process in the State of the complainant's residence, provided it be "found" within the district.o What constitutes such a finding is a matter hard to define with accuracy. If a State statute forbids a foreign corporation to transact business within her borders except upon condition that the corporation stipulate to allow legal process to be served upon it, and the company execute such a stipulation, not in express terms restricted to the process of a State court, it will be considered to apply to the Federal courts; and a subpœna from a Federal court may be served upon the foreign corporation in the same manner as a similar process of a State tribunal.10 Such condition and stipulation may be implied as well as expressed." If a State permits a foreign corporation to do business within her limits, and at the same time provides that, in suits against it for business there done, process shall be served upon its agents, the provision is deemed to be a condition of the permission; and corporations that subsequently do business in the State are deemed to assent to such condition as fully as though they had specially authorized their agents to receive service of the process.12 Such condition must not, how

5 Thornburgh v. Savage Mining Co., 1 Pac. Law Mag. 267. See infra, § 360. 6 Union Pac. Ry. Co. v. Novak (C. C. A.), 61 Fed. R. 573. Not, however, one by a statutory agent. Farmer v. Nat. Life Ass'n, 50 Fed. R. 829.

7 McCormick H. M. Co. v. Walthers, 134 U. S. 41; In re Keasby & Mattison Co., 160 U. S. 221; supra, § 22.

8 In re Hohorst, 150 U. S. 653; Barrow S. S. Co. v. Kane, 170 U. S. 100.

9 McCormick H. M. Co. v. Walthers, 134 U. S. 41; supra, § 22.

10 Ex parte Schollenberger, 96 U. S. 369, overruling several cases to the contrary previously decided in the Circuit Courts.

11 St. Clair v. Cox, 106 U. S. 350, 356. 12 Mr. Justice Field in St. Clair v. Cox, 106 U. S. 350, 356. See also Hayden v. Androscoggin Mills, 1 Fed. R. 93; Estes v. Belford, 22 Fed. R. 275.