ever, encroach upon that principle of natural justice which requires notice of a suit to a party before he can be bound by it. It must be reasonable, and the service provided for should be only upon such agents as may be properly deemed representatives of the foreign corporation. Service upon an agent who stood in no representative character to the company, whose duties were limited to those of a subordinate employee, or to a particular transaction, or whose agency had ceased when the matter in dispute arose, would, probably, be held insufficient.13 Where the State statute permitted such a practice, it was held that service upon an agent of a foreign corporation who had been sent into the State to negotiate with the plaintiff for a settlement of the controversy was sufficient." In order thus to subject itself to the service of process the foreign corporation must actually transact business in the district where the suit is brought.15 An insurance company does not cease to do business in a State when it receives premiums upon policies previously issued there; although such premiums are sent by the insured to an agent in another State, and the company issues no new policies in the former State.16 A single act of business, such as the making of a contract there for the sale of an article to be manufactured elsewhere and there delivered, would not be sufficient, "when there was no purpose to do any other business or to have a place of business" within the district." So, it has been held that the presence of the principal officers of a corporation in a foreign State, when they have with them

13 St. Clair v. Cox, 106 U. S. 350, 359, 360; Mexican C. Ry. Co. v. Pinkney, 149 U. S. 194; Maxwell v. Atchison, T. & S. F. R. Co., 34 Fed. R. 286; Carron Iron Co. v. McClaren, 5 H. L. C. 416. In Evansville Courier Co. v. United Press, 74 Fed. R. 918, service upon the agent of a news association who was paid by the item for furnishing news from the State capital was held insufficient to acquire jurisdiction over the foreign corporation.

14 Connecticut Mut. Life Ins. Co. v. Spratley, 172 U. S. 602.

15 Cooper Mfg. Co. v. Ferguson, 113 U. S. 727; Hayden v. Androscoggin Mills, 1 Fed. R. 93; Zambrino v. Galveston, H. & S. A. Ry. Co., 38 Fed. R.

449; Riddle v. N. Y., L. E. & W. R. Co., 39 Fed. R. 290; Maxwell v. Atchison, T. & S. F. R. Co., 37 Fed. R. 286; Filli v. D., L. & W. R. Co., 37 Fed. R. 65; Denton v. International Co. of Mexico, 36 Fed. R. 1; Block v. Atchison, T. & S. F. R. Co., 21 Fed. R. 529. 16 Connecticut Mut. Life Ins. Co. v. Spratley, 172 U. S. 602.

17 Cooper Mfg. Co. v. Ferguson, 113 U. S. 727, 735; Good Hope Co. v. Railway B. F. Co., 22 Fed. R. 635; Maxwell v. Atchison, T. & S. F. R. Co., 34 Fed. R. 286. Cf. Doe v. Springfield B. Co. (C. C. A.), 104 Fed. R. 684; Eirich v. Donnelly C. Co. (C. C. A.), 105 Fed. R. 1.

property of the corporation merely for the purpose of exhibition, does not make the corporation liable to the service of process upon them there.18 The lease by a foreign to a domestic corporation of personal property, and the payment by the latter to the former of a part of the profits derived from the use of such property within the jurisdiction of the court, does not give the court jurisdiction over the foreign corporation, upon service of a subpoena upon the latter as its agent.19 The negotiation of loans upon a mortgage, and a successful application to have the bonds thereby secured listed on the stock exchange, are not sufficient acts of business to authorize service of process upon its president for the corporation while he is temporarily within the State for those purposes.20 A surety company may be served in any district where it is found in a suit upon a bond or undertaking given in such district under the statutes of the United States.21 Service upon a surety company is made upon its agent in the district appointed by it for that purpose or in his absence, or, in case there is no such appointment, by service upon the clerk of the court where the suit is brought.2 Service of process in the manner prescribed by the State practice may subject a foreign corporation to the jurisdiction of the Federal court, in a case over which the State statutes deprive, her courts of jurisdiction because the cause of action arose without the State. It has been said, however, "that in the absence of a voluntary appearance, three conditions must concur or co-exist in order to give the Federal courts jurisdiction in personam over a corporation created without the territorial limits of the State in which the court is held, viz: (1) It must appear as a matter of fact that the corporation is

18 Carpenter v. Westinghouse AirBrake Co., 32 Fed. R. 434. See Reifsnider v. American Imp. Pub. Co., 45 Fed. R. 433.

19 U. S. v. Am. B. Tel. Co., 29 Fed. R. 17.

20 Clews v. Woodstock Iron Co., 44 Fed. R. 31. Where the books for the transfer of the stock of a Minnesota railway company were kept in the city of New York, it was held that the corporation might be served with process there. Westinghouse A. B.

carrying on its business in such foreign State or district; (2) that such business is transacted or managed by some agent or officer appointed by and representing the corporation in such State; and (3) the existence of some local law making such corporation, or foreign corporations generally, amenable to suit there, as a condition, express or implied, of doing business in the State. It has been held that the Superintendent of the Insurance Department of the State of New York cannot be served by mail; and that he has no power to waive a defect in the service of process upon him so as to bind a foreign insurance company.25 It has been held that upon a motion to set aside service upon a foreign corporation because the writ was not served upon the proper person, the defendant need not show upon whom the service should be made or that it has no agent in the district.26

§ 96. Substituted service of a subpoena.- Independently of any express statutory authority, there is no power in a court of equity to order actual personal service to be effected upon a defendant beyond its territorial jurisdiction; but, in a few cases, such courts have for more than a century assumed the power of ordering service to be made within their jurisdiction upon some person for the absent defendant, and have treated such service as valid. In suits to stay proceedings at law in the same court, the service of a subpoena upon the attorney of the plaintiff at law may be allowed, and it will then bind the latter if he be beyond the territorial jurisdiction of the court. It has been held that this cannot be done after the judgment at law has been enforced, since the attorney's authority to represent

24 U. S. v. Am. B. Tel. Co., 29 Fed. R. 17, 35, per Jackson, J. See Maxwell v. Atchison, T. & S. F. R. Co., 34 Fed. R. 286, 289.

1 Dickens, 39; Hyde v. Forster, 1
Dickens, 102; Lady Carrington v.
Cantillon, Bunb. 107; Hobhouse v.
Courtney, 12 Simons, 140, and cases

25 Farmer v. National Life Ass'n, 50 there cited; Daniell's Ch. Pr. (2d Fed. R. 829. Am. ed.) 502-508.

26 Wall v. Chesapeake, etc. Ry. Co. (C. C. A.), 95 Fed. R. 398, Ward, J., dissenting.

§ 96. This passage was quoted and approved by Maxey, J., in Batt v. Proctor, 45 Fed. R. 515, 516.

2 Hales v. Sutton, 1 Dickens, 26; s. c. sub nom. Hallett v. Sutton, 12 Simons, 145, note; Carter v. De Brune,

3 Dunn v. Clarke, 8 Pet. 1; Hitner v. Suckley, 2 Wash. 465; Eckert v. Bauert, 4 Wash. 370; Ward v. Seabry, 4 Wash. 426; Read v. Consequa, 4 Wash. 174; Bartlett v. Sultan of Turkey, 19 Fed. R. 346. See also Logan v. Patrick, 5 Cranch, 288; Dunlap v. Stetson, 4 Mason, 349.

6

his client is then terminated. A similar practice would in all probability be allowed in serving process under bills not original; namely, bills of revivor, supplemental bills, and bills of revivor and supplement, which are nothing more than continuations of the suits upon which they operate." So, it has been held that, under a bill to reform an insurance policy pending an action at law upon the policy, a subpoena may be thus served upon the attorney for the party to the action at law; and that under a bill to collect out of equitable assets a decree of the same court of equity for costs, such service of a notice without a subpoena is sufficient." The Federal courts have refused to extend this class of cases so as to include a bill of interpleader, two of the defendants to which were engaged in an action between themselves in the same court concerning the same matter,s although in England such a mode of service might have been allowed. Nor, it seems, can a subpoena thus be served under a bill to set aside a sale made under a decree of the same court to which persons are joined as defendants who were not parties to the former suit.10 Substituted service of a subpoena to appear and answer to a cross-bill has been allowed," but not when the cross-bill sought to introduce new and distinct matters into the original suit.12 The safer practice when a defendant to a cross-bill cannot be served personally seems to be to procure an order staying his proceedings in the original cause until he answers the cross-bill.13 Substituted service of process

4 Kamms v. Stark, 1 Sawyer, 547. 5 Norton v. Hepworth, 1 H. & T. 158; Dunn v. Clarke, 8 Pet. 1. But see Henderson v. Meggs, 2 Brown Ch. C. 127; Anderson v. Lewis, 3 Brown Ch. C. 429; Gardiner v. Mason, 4 Brown Ch. C. 478. This passage was quoted with approval by Morrow, J., in Shainwald v. Davids, C9 Fed. R. 701, 703.

Ins. Co., 37 Fed. R. 731.

Ry. Co., 3 Fed. R. 772; s. c. on appeal, 111 U. S. 505, 522.

11 Johnson R. R. S. Co. v. Union S. & S. Co., 43 Fed. R. 331; § 173; Kingsbury v. Buckner, 134 U. S. 650, 676; Lowenstein v. Glidewell, 5 Dill. 325; Sawyer v. Gill, 3 Woodb. & M. 97; Segee v. Thomas, 3 Blatchf. 11; Hitner v. Suckley, 2 Wash. 465; Anderson v. Lewis, 3 Brown Ch. C. 429; Gardiner

6 Abraham v. North German Fire v. Mason, 4 Brown Ch. C. 478; Waterton v. Croft, 5 Simons, 502; infra, § 173.

7 Maitland v. Gibson, 79 Fed. R. 136. 8 Herndon v. Ridgway, 17 How. 424. See § 88.

9 Martinius v. Helmuth, G. Cooper, 248; Stevenson v. Anderson, 2 Ves. & B. 407. See § 88.

12 Rubber Co. v. Goodyear, 9 Wall. 307; Heath v. Erie Ry. Co., 9 Blatchf. 316. But see Kingsbury v. Buckner, 134 U. S. 650, 676. See infra, § 173. 13 Sawyer v. Gill, 3 W. & M. 97;

10 Pacific R. Co. of Mo. v. Mo. Pac. Segee v. Thomas, 3 Blatchf. 11; Hit

or notice upon a petition of intervention is allowed in the same cases in which it would be allowed upon a cross-bill.1 Substituted service has also been allowed in England upon the agent of a defendant beyond the jurisdiction, who had authority to represent the latter with respect to the property which was the subject of the suit.15 When substituted service is wished, an order must be obtained that service upon the attorney employed in the former suit or action shall be deemed good service. If service be made upon the attorney without such an order having been obtained, it may be set aside," and all subsequent proceedings will be void.18 The motion for such an order ordinarily may be ex parte.19 It must be supported by an affidavit, made by the plaintiff or by some person having personal knowledge of the facts therein stated, setting forth the reasons why such service is necessary and verifying the allegations of the bill.20 Written admissions of the defendant may, however, be sufficient to support the motion without such affidavit. A previous request of the attorney and his refusal to accept service of the subpoena are not a necessary preliminary to such a motion.22 Where the bill is demurrable for want of equity, the motion for substituted service may be denied.23 Where the order has been improvidently made, it may be set aside on motion at the same term.24

§ 97. Statutory service of a subpoena.- The statutes of the United States, which in this respect are analogous to those of

ner v. Suckley, 2 Wash. 465; Anderson v. Lewis, 3 Brown Ch. C. 429; Gardiner v. Mason, 4 Brown Ch. C. 478; Waterton v. Croft, 5 Simons, 502.

14 Fidelity T. & S. D. Co. v. Mobile St. Ry. Co., 53 Fed. R. 850; infra, SS 201, 202.

15 Hobhouse v. Courtney, 12 Sim. 140; Fidelity T. & S. D. Co. v. Mobile St. Ry. Co., 53 Fed. R. 850; Gasquet v. Fidelity T. & S. V. Co. (C. C. A.), 57 Fed. R. 80; Gregory v. Pike, 79 Fed. R. 520.

16 Pacific Ry. Co. of Mo. v. Mo. Pac. Ry. Co., 3 Fed. R. 772; s. C., 1 McCrary, 647; Daniell's Ch. Pr. (2d Am. ed.) 502. 17 Ibid.

18 Gregory v. Pike, 79 Fed. R. 520. 19 Daniell's Ch. Pr. (2d Am. ed.) 502. But see Crew v. Martin, 1 Fowler Ex. Pr. 225.

20 Pacific Ry. Co. of Mo. v. Mo. Pac. Ry. Co., 3 Fed. R. 772; s. c., 1 McCrary, 647; Delancy v. Wallis, 3 Brown's C. C. 12; Stephen v. Cini, 4 Ves. 359; Kenworthy v. Accunor, 3 Madd. 550.

21 Royal Exch. Ins. Co. v. Ward, 1 Fowler Ex. Pr. 225.

22 French v. Roe, 13 Ves. 593. 23 Muhlenburg County v. Citizens' Nat. Bank, 65 Fed. R. 537.

24 Fidelity T. & S. D. Co. v. Mobile St. Ry. Co., 53 Fed. R. 850.