been levied personal service of the process may be made by leaving the writ at the place where defendant had last stopped, is due process of law in so far as it supports a judgment against the property seized.7

At common law the service should be made in accordance with the State statute. Where the State practice permits the writ to be served by an individual who is not an officer, it need not be served by the marshal. The manner of service upon corporations is described in the following sections.10

In equity it must be made by the marshal of the district or his deputy, or by some other person specially appointed by the court for that purpose, and not otherwise.11

A copy of an order, that non-resident defendants appear and plead before a day specified therein, may be served by any one, under an order for substituted or statutory service, although the usual practice is to serve it by a deputy marshal of the district where the defendants are found.12 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.13

"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." 14 "The service of all process, mesne and final, shall be by the marshal of the district, or his deputy, or by some other person specially appointed by the court or judge for that purpose, and not otherwise. In the latter case, the person serving the process shall make affidavit thereof." 15 When a husband and wife are parties a copy should be served upon each, although the former practice was complied with by service upon the husband alone.16

7 Herbert v. Bicknell, 233 U. S. 70. 8 Amy v. Watertown, 130 U. S. 301, 32 L. ed. 946; Shampeau v. Conn. R. L. Co., 37 Fed. 771; infra, § 453. 9 King v. Davis, 137 Fed. 198, 210, aff'd as Blankenship v. King, C. C. A., 157 Fed. 676.

10 § 164.

11 Equity Rule 15; Deacon V. Sewing M. Co., 14 Rep. 43.

12 Forsyth v. Pierson, 9 Fed. 801. 13 Jewett v. Garrett, 17 Fed. 625. 14 U. S. R. S., § 922.

15 Eq. Rule 15, copied in substance from Eq. Rule 15 of 1842. See Phoenix Ins. Co. v. Wulf, 1 Fed. 775; Hyslop v. Hoppock, 5 Ben. 447.

16 O'Hara v. MacConnell, 93 U. S. 150, 23 L. ed. 840; Robinson v. Cathcart, 2 Cranch C. C. 590.

When a defendant was sued both individually and in a representative capacity, it was held that only one copy of the subpœna need be left with him.17 Such service at the door of the defendant's dwelling,18 and at his place of business when he lives in rooms above the same, 19 has been held to be sufficient. In an English case, where infant defendants were secreted, service upon their mother was allowed, and held sufficient.20 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.21 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." 22 It has, however, since been held in England that a service on Sunday may be set aside.23 A decision of circuit holds that, in an extraordinary case, a warrant of arrest in admiralty can be issued on Sunday.24

Personal service of the subpoena cannot, in the absence of any special statutory provision, be made beyond the territorial jurisdiction of the court; 25 not even in another district of the State; 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

17 Cornell v. Green, 88 Fed. 821; s. c. in C. C. A., 95 Fed. 334.

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

19 Lovin v. Hicks, 116 Minn. 179, 133 N. W. 575.

20 Smith v. Marshall, 2 Atk. 70, Mr. William Allen Butler, in a learned opinion when referee, held that, where a guardian ad litem was appointed, service of a subpœna upon his infant ward was not indispensable to the jurisdiction. Sloane v. Martin, 77 Hun. 249. See supra, § 106.

21 Sloane v. Martin, 77 Hun (N. Y.), 249. See supra, § 106.

22 Gilbert's Forum Romanum (Tyler's ed.) 42.

23 Mackreth v. Nicholson, 19 Ves. 367.

24 Pearson v. The Alsalfa, 44 Fed. 358 (U. S. D. C. D., S. C).

25 Toland v. Sprague, 12 Pet. 300, 328, 9 L. ed. 1093, 1104; Picquet v. Swan, 5 Mason, 35; Bourke v. Amison, 32 Fed. 710; Butterworth v. Hill, 114 U. S. 128, 29 L. ed. 119.

26 Lukosewicz v. Phila. & R. Coal & Iron Co., 232 Fed. 292; Tauza v. Penn. R. Co., 232 Fed. 294; Rakaus kas v. Erie R. Co., 237 Fed. 495.

entirely in either district of a State which is divided into two or more districts, a defendant resident therein may be served by the marshal of any district in that State where he resides.27 The writ must be addressed to the marshal in the district where service is to be made.28 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, 29 a suit to determine the rightful owners of a fund in court,30 and a suit by the United States to determine the right of an Indian tribe to a fishery,31 are such cases of a local nature.

In a suit not of a local nature, a duplicate writ may be issued against a defendant residing in a different district of the State directed to the marshal of such district. "The clerk issuing the duplicate writ shall indorse thereon that it is a true copy of a writ sued out of the court of the proper district; and such origi nal and duplicate writs, when executed and returned into the office from which they issue, shall constitute and be proceeded on as one suit; and upon any judgment or decree rendered therein, execution may be issued, directed to the marshal of any district in the same State." 32 Where defendants reside in different divisions of a district, all mesne and final process may be served and executed in any or all of the divisions of the district.33 In other cases where a State is divided into two or more districts the defendant cannot be served out of the district.34

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.35 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 defend

27 Jud. Code, §§ 54, 55, 56, 36 St. at L. 1087.

28 Kuzma v. Witherbee Sherman Co., 232 Fed. 286; Vitkus v. Clyde S. S. Co., 232 Fed. 288.

29 East Tenn., V. & G. R. Co. v. Atlanta & T. F. R. Co., 49 Fed. 508. 30 Winter v. Ludlow, 3 Phila. 464. 31 U. S. v. Winans, 73 Fed. 72.

32 Jud. Code, § 52, 36 St. at L. 1087.

33 Jud. Code, § 53, 36 St. at L. 1087.

34 Galveston, H. & S. A. Ry. Co. v. Gonzales, 151 U. S. 496, 38 L. ed. 248. But see Winter v. Ludlow, 3 Phila. 464.

35 26 St. at L., §§ 5, 210.

ant has a regular place of business in the district and has committed acts of infringement there.36 At common law, where the State statutes permit the practice, 37 and in equity by leave of the court,38 a receiver of a foreign railroad company may be served by leaving the writ with one of his station agents. It has been held that an attorney cannot accept service of a subpæna ad respondendum before the entry by him of a formal appearance; 39 but an acceptance and appearance by him without any authority may be ratified by estoppel.40

§ 164. Service upon public corporations. If the United States are sought to be made parties defendant, the subpœna should be served upon the Attorney-General or the District Attorney of the district where the suit is brought.1

"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. Service upon a municipal corporation in an action at common law should be in accordance with the state practice, which will usually be followed in suits in equity as well as at law.

4

§ 164a. Service upon Federal corporations. It has been held: that a corporation created by an act of Congress can, in the absence of a special statute of the United States, be served with process from a Federal court only in the district where its principal office is situated and its corporate business is transacted, and not in another district where it has stipulated, in accordance with the State statute, to accept service of process; and in Pennsylvania, that, in the absence of an express provision in its

36 Jud. Code, § 38, 36 St. at L. 1087; supra, § 62.

37 Eddy v. Lafayette, 163 U. S. 456, 41 L. ed. 225.

38 Central Tr. Co. v. St. L. A. & T. Ry. Co., 40 Fed. 426.

39 U. S. v. Cooper, 196 Fed. 584. 40 Cowden v. Wild Goose Mining & Trading Co., C. C. A., 199 Fed. 561.

§ 164. 1 Hoffman's Ch. Pr. 108; Daniell's Ch. Pr. (2d Am. ed.) 517, note 4.

2 Supreme Court Rule 5; Grayson

v. Virginia, 3 Dall, 320, 1 L. ed. 619; supra, § 3.

3 Amy v. Watertown, 130 U. S. 301, 9 Sup. Ct. 530, 32 L. ed. 946. 4 Eby v. Northern Pacific R. Co., 13 Phila. 144; § 164a.

§ 164a. 1 A. L. Wolff & Co. v. Choctaw, O. & G. R. Co., 133 Fed. 601. Cf. Caledonian Coal Co. v. Barker, 196 U. S. 432, 49 L. ed. 540; Gould v. Texas & Pac. Ry. Co., N. Y. Sp. Tm. per Shearn, J., L. J. Dec. 15, 1916.

charter a corporation created by an act of Congress can be sued by service upon its president in any State.2

§ 164b. Service upon domestic corporations. 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 the 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.1 Where the State practice prescribed a specific method of service, that must be followed in actions at common law,2a and will usually be followed in a suit in equity. If not obnoxious to the Constitution, it is binding in a collateral proceeding; but when the proceeding is attacked by a motion to set aside the service upon a foreign corporation, the Federal court determines the objection for itself and is not necessarily controlled by the State law. When railroads were operated by receivers appointed by a Federal court it was held that the receivers might be served by service upon their managing agent within the State or by service upon the ticket agent who was also station master.7 An irregularity in service upon the agent of a corporation may be validated by his admission of service.8

2 Thornburgh v. Savage Mining Co., 1 Pac. Law Mag. 267.

§ 164b. 1 Daniell's Ch. Pr. (1st Am. ed.) 564. "If a bill be filed against a corporation the process must be served upon some one of the members."' Citing Hinde's Cl. Pr. 87, which uses the same words. But see St. Clair v. Cox, 106 U. S. 353, 359, 27 L. ed. 223, 226; Rand v. Proprietors, etc., Co., 3 Day (Conn.), 441; O'Brien v. Stair's F. & T. C. Co., 10 Cal. 343.

2a Amy v. Watertown, 130 U. S. 301, 9 Sup. Ct. 530, 32 L. ed. 946; Lemon v. Imperial Window Glass Co., 199 Fed. 927, holding that, in West Virginia, a corporation which had failed to fix its place of residence in the State, by appointing an

attorney resident in one of its counties might be served either by attachment and publication or by serving process upon the State auditor.

8 Eby v. Northern Pac. R. Co., 13 Phila. 144. But see infra, § 455. 4 Swarts v. Christie Grain & Stock Co., 166 Fed. 338.

5 West v. Cincinnati, N. O. & T. P. Ry. Co., 170 Fed. 349, and cases cited infra.

6 Jacobs v. Blair, 157 App. Div. (N. Y.) 601.

7 Missouri K. & T. Ry. Co. v. Hudson, 174 Pac. 1058 (Oklahoma, Sept. 1918). See infra, § 314.

8 Union Pac. Ry. Co. v. Novak, C. C. A., 61 Fed. 573. Not, however, one by a statutory agent.