§ 7502. State Law Governs in Actions in Federal Courts. Under the Federal act of 1792,1 it was within the power of the Federal courts, by general rules, to adapt their practice to the exigencies and conditions of the times. But since the passage of the process act of 1872, the pleadings, forms, and modes of procedure in the Federal courts must conform to the State law and to the practice of the State courts, except where Congress has legislated upon a particular subject and prescribed a rule. When, therefore, a State statute prescribes a particular mode of serving mesne process, that mode must be followed; and this rule is said to be especially exacting in reference to corporations. This, it is to be observed, is in conformity with the principle elsewhere stated,' that where a particular mode of serving process is pointed out by statute, that mode must be followed. By this act of Congress, the statute law of the particular State within which the Federal court sits, is made the law governing the practice of the Federal court in reference to its process. The State law becomes the law of the United States by congressional adoption. It is the professed rule of the Federal courts-often departed from -to follow the State courts in the construction of their own statutes; but here, it is conceived, the rule does not in strict

ness apply; since, by this congressional adoption, the State statute has become, for the purposes of Federal practice, a Federal statute. Nevertheless, courts of the United States, for the sake of carrying out the policy which Congress had in view, of securing within each State a uniform practice in both classes of courts, State and Federal, will defer to the construction put by the highest courts of the particular State upon the construction of its process act, whenever the question arises in actions commenced in a Federal court.1 In some respects it is not possible to make a literal application of the State process act in the Federal courts, but the Federal court applies it by as close an analogy as its constitution permits. Thus, where the State statute provides for service of process against a railroad company upon one of certain officers, if such officer is in the county, otherwise upon another agent, the process of a Federal court must be served upon such officer if within the Federal district. The act of Congress elsewhere considered, providing for the venue of actions in Federal courts where jurisdiction otherwise attaches under the Constitution and the Judiciary Act, confers, as we have elsewhere seen,' a personal privilege upon the defendant, which he may waive, and which he does waive by appearing and contesting the merits when sued in a Federal district other than that of his habitation. When, therefore, a foreign corporation has, in pursuance of the laws of the domestic State in which it does business, designated a person upon whom process may be served, this designation may be extended to Federal, as well as to State, process. The corporation thereby consents to be sued in the district embracing such State, and waives the exemption granted to it under the act of Congress.*

"In the construction of a State statute, in a matter purely domestic, as this is, we always feel strongly disposed to give great weight to the decisions of the highest tribunal of the State." Amy v. Watertown, 130 U.

8. 301, 318; citing Burgess v. Seligman, 107 U. S. 20.

Miller v. Norfolk & W. R. Co., 41
Fed. Rep. 431.

• Post, § 7884, et seq.
• Post, § 7554.

• Gray v. Quicksilver Min. Co., 21 Fed. Rep. 288.

§ 7503. Statute must be Followed in Order to Give Jurisdiction. Where a particular method of service of process upon corporations is pointed out by statute, that method must be followed; and where the statute designates the officer or agent upon whom process is to be served, it must be served upon that officer or agent, in order to give jurisdiction.' Statutes of this kind are not regarded as directory, but as mandatory and exclusive; hence where a statute prescribes the method of service, a method not included therein will not be good, although it might have been good at common law. Thus, if the statute designates certain officers or agents upon whom writs may be served, a service upon another agent, or even upon a person in possession of the property of the corporation sought to be affected by the suit,' will not give jurisdiction. Where there are two statutes, one directing the mode of service generally, and the other, using the word "may," and providing how service may be made in the special case, the special statute, not being in terms exclusive to be read "must"-does not

Amy Watertown, 130 U. S. 301, 316; Weil v. Greene County, 69 Mo. 281; Chambers v. King &c. Manufactory, 16 Kan. 270; Kennedy v. Hibernia &c. Soc., 38 Cal. 151; Aiken v. Quartz Rock &c. Co., 6 Cal. 186; O'Brien v. Shaw's Flat &c. Co., 10 Cal. 343; Reddington v. Mariposa &c. Co., 19 Hun (N. Y.), 405; Cherry . North & South R. Co., 59 Ga. 446; Union Pac. R. Co. v. Miller, 87 Ill. 45; Lake Shore &c. R. Co. v. Hunt, 39 Mich. 469; Great West. Min. Co. v. Woodmas &c. Co., 12 Colo. 46; 8. c. 13 Am. St. Rep. 204; 20 Pac. Rep. 771; Foster v. Hammond, 37 Wis. 185, 187; Helms v. Chadbourne, 45 Wis. 60; Watertown v. Robinson, 69 Wis. 230; s. c., on former trial, 59 Wis. 513; 17 N. W. Rep. 542; Cosgrove v. Tebo &c. R. Co., 54 Mo. 495; Hebel v. Amazon Ins. Co., 33 Mich. 400; Hart

for here "may" is not exclude the mode of service

ford Fire Ins. Co. v. Owen, 30 Mich. 441; Merrill v. Montgomery, 25 Mich. 73; American Express Co. v. Conant, 45 Mich. 642; Southern Ex. Co. v. Craft, 43 Miss. 508; Kibbe v. Benson, 17 Wall. (U. S.) 624; Alexandria v. Fairfax, 95 U. S. 774; Settlemier v. Sullivan, 97 U. S. 444; Evans v. Dublin &c. R. Co., 14 Mees. & W. 142; Walton v. Universal Salvage Co., 16 Mees. & W. 438; Brydolf v. Wolf, Carpenter &c. Co., 32 Iowa, 509; Hoen v. Atlantic &c. R. Co., 64 Mo. 561; Lehigh Valley Ins. Co. v. Fuller, 81 Pa. St. 398; Congar v. Galena &c. R. Co., 17 Wis. 477, 485.

Southern Ex. Co. v. Craft, 43 Miss. 508.

'Aiken v. Quartz Rock &c. Co., 6 Cal. 186; O'Brien v. Shaw's Flat &c. Co., 10 Cal. 343.

pointed out by the general statute.' The provision in a particular statute directing the manner in which process is to be served upon the corporation is not superseded by a general law providing a different mode of service upon similar corporations; for generalia specialibus non derogant.2

§ 7504. Legislature may Change Modes of Service. The legislature may,' and the legislatures of the States constantly do,' change the modes of serving process upon corporations; and this is no violation of the vested rights of the corporation, and no impairment of the obligation of the contract between it and the State subsisting in its charter, but is a matter relating to the remedy merely.

§ 7505. Rule where there is No Governing Statute. If there is no governing statute, then, under the principles of the common law, as elsewhere explained, the service must, in order to bind the corporation, be made upon an officer or agent sustaining such a relation to it as to be capable of receiving notice for it in respect of the matter of the suit. At common law this officer was the head officer of the corporation,—in the case of a municipal corporation, the mayor." But a sound modern view is that where the corporation is one engaged in trade or business, service may be made upon the officer or agent whose duty it is, either in his official capacity or by virtue of his employment, to communicate the fact of such service to the governing body of the corporation; and that such an officer may be its secretary, who, as already seen, is its organ of communication with the outside world.10

1 State v. Hannibal &c. R. Co., 51 Mo. 532.

• Stabler v. Alexandria, 42 Fed. Rep. 490.

New Albany &c. R. Co. v. McNamara, 11 Ind. 543.

Fee v. Big Sand Iron Co., 13 Ohio St. 563.

• Ante, § 5195, et seq.

• Sturtevant v. Milwaukee &c. R. Co., 11 Wis. 61. Compare Barrett v.

9

American Telegraph &c. Co., 56 Hun (N. Y.), 430; 8. c. 31 N. Y. St. Rep. 465; 10 N. Y. Supp. 138.

* 1 Tidd Prac. 116; People v. Cairo, 50 Ill. 154.

Dock v. Elizabethtown &c. Man. Co., 34 N. J. L. 312.

• Heltzell v. Chicago &c. R. Co., 77 Mo. 315, 317.

10 Ante, 5195.

§ 7506. Agency of Person on Whom Process Served must Appear of Record. That the person on whom the process was served sustains such a relation to the corporation as to affect it with notice, under the principles of the preceding section, must in some way appear of record. In some jurisdictions it is error to render a judgment by default, without proof being made to the court that the person upon whom the service was made sustains the relation to the corporation indicated above. Thus, although the process is returned as having been served upon the president of the corporation, it is necessary that proof of his official character should be made to the court, to support a judgment by default, and the sheriff's return alone does not prove that fact. So, an acceptance of service by the secretary of a corporation is not of itself sufficient evidence that he bears such a relation to the corporation as will make the service effectual to give jurisdiction against the corporation, although the governing statute permits the service to be made upon the secretary of a corporation. "That he was the secretary must be shown." This is analogous to the general rule that agency cannot be proved by the mere unsworn declarations of the agents. But where the judgment entry contains the recital that service was proven to the satisfaction of the court, this must be construed, in favor of the judgment, to mean that evidence was introduced tending to show that the person accepting service was the secretary of the company, as he describes himself."

1 Sturtevant v. Milwaukee &c. R. Co., 11 Wis. 61.

Bank. Walker, Minor (Ala.), 391; Lyon v. Lorant, 3 Ala. 151; Wetumpka &c. R. Co. v. Cole, 6 Ala. 655; Talladega Ins. Co. v. McCullough, 42 Ala. 667; Oxford Iron Co. v. Spradley, 42 Ala. 24; Talladega Ins. Co. v. Woodward, 44 Ala. 287.

'Wetumpka &c. R. Co. v. Cole, 6 Ala. 655.

4 Talladega Ins. Co. v. Woodward, 44 Ala. 287. See also Hebel v. Amazon Ins. Co., 33 Mich. 400.

• Ante, § 4880.

Talladega Ins. Co. v. Woodward, 44 Ala. 287. The same practice obtains in Louisiana, where the corporation defendant can appear specially for the purpose of objecting to the mode of service, absurd as this may seem. See Collier v. Morgan's R. Co., 41 La. An. 37; s. c. 5 South. Rep. 537. In this case a domestic railroad company was allowed to trifle with justice by coming into court for the purpose of showing that the person on whom process against it had