practice, however, it has developed that many deviations from state practice have been required by the necessities of practicality.80 In patent infringement cases the ordinary service is permissible if the corporation is an inhabitant of the district, or alternatively service may be on an agent, and the latter is the only mode if the corporation is not an inhabitant.81

§ 2991. Person to be served-In general. The prime requirement is that the person served must be one who is for that purpose a representative of the corporation 82 and not the agent of its receiver,8

court will apply as inherent in the law of the corporate creation and existence. Atlas Glass Co. v. Ball Bros. Glass Mfg. Co., 87 Fed. 418, appeal dismissed, 93 Fed. 987 (mem. dec.).

80 See 1 Rose's Code of Federal Procedure, p. 793, § 853.

81 Judicial Code, § 48; National Elec. Signalling Co. v. Telefunken Wireless Tel. Co., 194 Fed. 893; Weller v. Pennsylvania R. Co., 113 Fed. 502; United States Gramophone Co. v. Columbia Phonograph Co., 106 Fed. 220.

82 Polacsek V. American Iron & Steel Mfg. Co., 164 N. Y. App. Div. 925, 149 N. Y. Supp. 372.

That a person must be served, and that he must be representative of the corporation to acquire jurisdiction in personam, see Swann v. Mutual Reserve Fund Life Ass'n, 100 Fed. 922. The person must be one whose relations to the corporation or the claim make it reasonable that the corporation will be notified. King Tonopah Min. Co. v. Lynch, 232 Fed. 485.

Service on one not the agent confers no jurisdiction, though he and the plaintiff's attorney notified the corporation of the action. Kingman & Co. v. Mann, 36 Ill. App. 338.

road in the hands of a receiver cannot be served under a statute applying only where one company permits another to operate its road. Ex parte Charles, 106 Ala. 203, 18 So. 73.

An agent of the state under a receiver in possession is not an agent of the corporation. Cherry v. North & S. R. Co., 59 Ga. 446.

Inoperative railroad corporation in receiver's hands could not have a station agent where it would violate the receivership. Heath v. Missouri, K. & T. Ry. Co., 83 Mo. 617.

Agent of receivers at their office and station was not agent of railroad. Vickery v. Omaha, K. C. & E. Ry. Co., 93 Mo. App. 1.

Ticket agent of receivers cannot be served for corporation. Cincinnati & M. R. Co. v. Orme, 1 Ohio Cir. Ct. 511, 1 Ohio Cir. Dec. 285.

The reason for the foregoing decisions is that the receiver and his agents are not representative of the corporation. It is true that a federal receiver may by virtue of a federal statute be served in the same way that a corporation might have been, whose railroad is in his hands, but the converse of this is not true, because there is ordinarily no such statute. It has been held under this statute (24 U. S. St. 554) that service on a station agent of the receivers binds them though the sheriff intended a to summon the corporation and re

Service on a temporary trustee under invalid appointment as receiver is not sufficient to bind the corporation. Youree v. Home Town Mut. Ins. Co., 180 Mo. 153, 79 S. W. 175.

83 A station or depot agent on

nor can it be on the receiver himself; 84 and if there are two or more corporations that representation must be for the corporation which is to be served and not for the other one,85 though they may in fact be related to each other, as in the case of a lessor and lessee,86 or lines using a union station,87 or as connections in a system or through line,88 or by traffic arrangements.89

allow an owner to be served by process delivered to and served on agents of the lessee or operating company 90 and a foreign receiver operating the defendant's railroad has been held to be within this statute.91 If the person served have a dual agency whereby he represents more than one of the defendants or different corporations, a service on him for one is of no effect to bring in the other. The process must go against each and be served on each.92 A doctrine exists that if two corporations or more are mere forms by which one entity conducts its affairs, the agent of any is the agent of all.93 If they are in fact nothing but forms no exception can be taken to this doctrine, because a form without substance can have no business activity and consequently no agent; but a reading of some of the cases just cited leaves a grave question in the mind whether the fact was as the decision predicates it. Some of the other cases herein cited, which have held the lessee's agent incompetent for service on the lessor and which have distinguished between related distinct corporations, might with equal fidelity to the facts apparent in the opinions have been decided according to the doctrine that the subsidiary corporations were naught but forms. It seems necessary to state that the

operated as one system under a common trade name, is not an agent for another of such corporations, though he, like other agents, sold tickets to points on the other lines in the system. Barnard v. Springfield & N. E. Traction Co., 274 Ill. 148, L. R. A. 1916 F 451, 113 N. E. 89, aff'g 194 Ill. App. 218.

One railway company is not an agent for another merely because it issues through bills of lading and tickets. Royce v. Chicago & N. W. R. Co., 90 Wash. 378, 156 Pac. 16.

90 See Maysville & B. S. R. Co. v. Ball, 108 Ky. 241, 21 Ky. L. Rep. 1693, 56 S. W. 188; Maysville & B. S. R. Co. v. Shofstall, 15 Ky. L. Rep. 632, 24 S. W. 1068.

Under a statute which provides that lessor railroad corporations may be held liable for claims against lessee railroad corporations, it does not necessarily follow that service of process upon the agent of a lessee corporation is sufficient to bring the lessor corporation into court. Perry

V.

Brunswick & W. R. Co., 119 Ga. 819, 47 S. E. 172.

91 A depot agent of a line of road operated by foreign receivers under a contract to prorate expenses and revenues is an agent of the Georgia corporation also, though he accounts to the receivers. Code, § 3369 applies. (The resident director was also served in this case.) Georgia Southern R. Co. v. Bigelow, 68 Ga. 219.

92 Pennsylvania Co. v. Sloan, 1 Ill. App. 364.

93 The agent of a subsidiary corporation may be treated as agent for the principal one, if the subsidiary one is a mere local name for the other. Postal Tel. Cable Co. v. Thornton, 153 Ky. 176, 154 S. W. 1100.

A domestic corporation formed, owned and operated as part of one line or route by a foreign corporation under a 999-year lease, was held a mere agency of the foreign corporation by which it was doing business in the state; and the foreign corporation was therefore suable by serv

[§ 2991 doctrine, notwithstanding its firm establishment in the states cited, is one to be received with caution and applied only within the limits. of the predicated facts.94 It is quite logical, however, to disregard a mere trade name under which the agency operates and to regard the real principal as having been well served in such a case.95

A de facto officer or agent 96 or an acting officer 97 though he has not formally accepted the office,98 or an agent liable for a misdemeanor for acting without a license,99 is competent. A somewhat difficult

Tex.

Nonresident may sue foreign controlling corporation for injury in another state where plaintiff was employed by a domestic subcorporation wholly owned by defendant. St. Louis & S. F. R. Co. v. Arms, Civ. App. 136 S. W. 1164. 94 Where, as in some of the cases last cited, the domestic corporation is formed to hold or operate properties in the state in connection with or as a part of a system belonging to a foreign corporation, the domestic corporation cannot be treated as an unsubstantial form for the purpose of service without also treating it as such for other purposes going to the substantial rights of the two corporations, and thus ignoring the subsidiary corporation, whether domestic or foreign, as a party in litigation. The rule (see this section, supra) that one

having a dual agency may be served for either of his corporate principals would seem adequate to cover such a situation.

As to distinction between foreign principal and local subsidiary corporations, see United States v. American Bell Tel. Co., 29 Fed. 17.

95 Agent of Erie Despatch" held agent of Erie Railroad Co., though former was a mere trade name of an organization for securing traffic for lines of its members, of which Erie R. Co. was the principal. Bell Jones Co. v. Erie R. Co., 168 Iowa 96, 150 N. W. 7.

96 Stillman v. Associated Lace Makers' Co., 14 N. Y. Misc. 503, 35 N. Y. Supp. 1071; Berrian V. Methodist Society, 13 N. Y. Super. Ct. 682, 4 Abb. Pr. 424.

Under the statute for serving notice of attachment of stock, de facto secretary may be served. McCall v. Byram Mfg. Co., 6 Conn. 428.

97 Russell v. Pittsburgh Life Insurance & Trust Co., 62 N. Y. Misc. 403, 115 N. Y. Supp. 950.

Acting president. Chamberlin Mammoth Min. Co., 20 Mo. 96.

V.

Acting secretary under appointment, where elected secretary refused to serve. Perry District Fair Society v. Zenor, 95 Iowa 515, 64 N. W. 598.

98 Danville & W. R. Co. v. Brown, 90 Va. 340, 18 S. E. 278.

99 The fact that it is a misdemeanor to act as agent for an unlicensed foreign insurer does not prevent service on an agent so acting. State v.

question of fact arises where one was agent for the defendant but has become agent for a successor in operation or for a receiver, and where it is contended that the new agency has been attended by a termination of the old. A complete novation of principals in such a case will, of course, put an end to the representation of the old one. A receiver, if such that he may be considered a representative of the corporation, may be served, it seems, but in the absence of a statute qualifying him to receive service for the corporation it is not easy to see how he can be its representative, since his appointment and authority emanates from the court and not from the corporation. Of course he may also be an officer or agent of the corporation and be served as such without regard to his receivership. The wife of an agent or officer is not a competent substitute or alternate for him, nor is an officer's clerk an agent for the corporation."

The scope of the agent's or officer's authority must cover reception of service not only generally but also with respect to the particular action. To this generally expressed rule may be related wholly or partly all of the many statutes which point out who shall be served, but especially that large class of statutes which provide for service on local agents having some connection in place or business with the origin of the cause of action. It is the authority of the agent rather than the accomplishment of its ends which clothes the agent with

United States Mut. Acc. Ass'n, 67
Wis. 624, 31 N. W. 229.

The statute (Laws 1880, c. 240) declaring such misdemeanor did not repeal the provisions contained in R. S. § 2637, subd. 9, for service on such corporations. State v. Northwestern Endowment & Legacy Ass'n, 62 Wis. 174, 22 N. W. 135.

1 As to the effect of termination of agency, see § 3002, infra.

2 That receivers may be competent representatives to be served, see International & G. N. R. Co. v. McCulloch (Tex. Civ. App.), 24 S. W. 1101.

3 As to the status and representation of a receiver, see generally chapter on Receivers, infra.

A federal receiver under the statute (24 U. S. Stat. 554) is to be served in the same manner as the corporation might be served under the laws

of the state in which he is operating its properties. Proctor v. Missouri, K. & T. R. Co., 42 Mo. App. 124.

4 An agent's wife cannot be served in his absence. Water Front Coal Co. v. Smithfield Marl, Clay & Transportation Co., 114 Va. 482, 76 S. E. 937. See also Shenandoah Valley R. Co. v. Griffith, 76 Va. 913, where a similar service was made but objection came too late.

5 Service on the president's phonographer and private secretary, returned as service on the defendant's "secretary," the president having been absent from office and full disclosure having been made to the sheriff, is bad. Collier v. Morgan's Louisiana & T. R. & S. S. Co., 41 La. Ann. 37, 5 So. 537.

6 See generally § 2994 et seq., infra.