§ 7507. Whether the Return Conclusive as to the Fact of Agency. This leads us to the inquiry whether the return of the sheriff, or other officer executing the process, is conclusive upon the question whether the person upon whom it was served sustained the relation to the corporation required by the statute, or by the principles of the common law, as stated in a preceding section. It is a general principle of law that the return, by an officer competent to serve and return a writ of summons, of the fact and mode of service, if in due form of law, is conclusive upon the parties to the record, in all proceedings, except in an action against the officer for a false return.3 This is in conformity with the more general rule of common law that the return of the officer upon any process in a case is conclusive on the parties to the suit, and can only be impeached in an action against the sheriff for a false return.' been served was not in fact its secretary, as the sheriff had returned. Compare Jacobs v. Sartorius, 3 La. An. 9. The true rule ought to be that if a defendant whose residence is within the jurisdiction comes into court to make such an objection, he comes for all purposes; and many courts so hold. 1 Ante, § 5195, et seg. Hallowell v. Page, 24 Mo. 590; Delinger v. Higgins, 26 Mo. 180; McDonald v. Leewright, 31 Mo. 29; s. c. 77 Am. Dec. 631; Reeves v. Reeves, 33 Mo. 28; Stewart v. Stringer, 41 Mo. 400; s. c. 97 Am. Dec. 278; Jeffries v. Wright, 51 Mo. 215; Phillips v. Evans, 64 Mo. 17; Anthony v. Bartholow, 69 Mo. 186; Madison Co. Bank v. Suman, 79 Mo. 527; Heath v. Missouri &c. R. Co., 83 Mo. 617, 623. • Ante, § 3363, p. 2426, note 3; Dalt. 189, 191; Rol. Abr., Return, O.; Watson on Sheriffs, 72; Knowles v. Lord, 4 Whart. (Pa.) 500; s. c. 34 Am. Dec. 525; Diller v. Roberts, 13 Serg. & R. (Pa.) 60; s. c. 15 Am. Dec. 578; Mentz v. Hamman, 5 Whart. (Pa.) 150; s. c. 34 Am. Dec. 546; Blythe v. Richards, 10 Serg. & R. (Pa.) 261; s. c. 13 Am. Dec. 672 (scire facias); Denny v. Willard, 11 Pick. (Mass.) 519; s. c. 22 Am. Dec. 389. In like manner, a sheriff's return is conclusive upon execution creditors, in a contest between them as to the right of priority. Flick v. Troxsell, 7 Watts & S. (Pa.) 65. As to the nature of the evidence afforded by a sheriff's return, see Mitchell v. Lipe, 8 Yerg. (Tenn.) 179; s. c. 29 Am. Dec. 116; Palmer v. Clarke, 2 Dev. L. (N. O.) 354; s. c. 21 Am. Dec. 340; Stevens v. Brown, 3 Vt. 420; 8. c. 23 Am. Dec. 215; Ritter v. Scannell, 11 Cal. 238, 248; s. c. 70 Am. Dec. 775; Rogers v. Cawood, 1 Swan (Tenn.), 142, 148; 8. c. 55 Am. Dec. 729; Lea v. Maxwell, 1 Head (Tenn.), 365, 369; Green v. Lanier, 5 Heisk. (Tenn.) 678; Whitaker v. Sumner, 7 Pick. (Mass.) 551; s. c. 19 Am. Dec. 298. In a suit in equity to enjoin a judgment at law, the plaintiff may show that he had no notice of the action, where to do so does not necessarily contradict the sheriff's return, -as where he shows This general rule is applicable in the case of service upon corporations, as well as upon natural persons. "In some States a departure from this rule has been recognized in its applica tion to corporations, when the service of process therein is that he was absent from home at the time the process was served by leaving a copy at his residence. Jones v. Commercial Bank, 5 How. (Miss.) 43; 8. c. 35 Am. Dec. 419. That the sheriff is estopped from contradicting his own return,- see Boone County v. Lowry, 9 Mo. 23; s. c. 43 Am. Dec. 532; State v. Rollins, 13 Mo. 179, 182; M'Clelland v. Slingluff, 7 Watts & S. (Pa.) 134; 8. c. 42 Am. Dec. 224. Compare Arnold v. Brown, 24 Pick.(Mass.) 89; 8. c. 35 Am. Dec. 296,- where it was held that an attaching officer is not estopped from showing that the property seized by him did not belong to the defendants. And it has been held that a sheriff's return cannot be contradicted, even in a proceeding by motion against him and his sureties to compel them to pay the amount of a judgment, with damages, for not levying on certain property, the sheriff having made a return of nulla bona on the writ of the moving party, and levied upon and sold the property of the same defendant on other writs. Egery v. Buchanan, 5 Cal. 53. In like manner, a sheriff's return of the due execution of a fieri facias is conclusive evidence in his favor, on a motion to amerce him. Bank v. Domigan, 12 Ohio, 220; s. c. 40 Am. Dec. 475. It is laid down as undoubted law that such a return is admissible evidence in the officer's favor, as also to affect the rights of third persons. Gyfford . Woodgate, 11 East, 297; Hathaway v. Goodrich, 5 Vt. 65; Stanton v. Hodges, 6 Vt. 64; Barrett v. Copeland, 18 Vt. 67; 8. c. 44 Am. Dec. 362. But as to the rights of third persons it is prima facie evidence only. So, it has been held that a sheriff's return on an execution is prima facie evidence in his favor, in an action to recover the price of the land sold thereunder. Hand v. Grant, 5 Smedes & M. (Miss.) 508; s. c. 43 Am. Dec. 528. So, his return is evidence in his favor in an action by him against the purchaser at a sale made by him to recover the price bid for the land. Nichol v. Ridley, 5 Yerg. (Tenn.) 63; 8. c. 26 Am. Dec. 254. So, an officer's return on an attachment is prima facie evidence in his favor in an action by him to recover the attached property. Nichols v. Patten, 18 Me. 231; s. c. 36 Am. Dec. 713. But in these and other cases it is ruled that the return of an officer, where he is a party, is only prima facie evidence (Bruce v. Holden, 21 Pick. (Mass.) 187; Sias v. Badger, 6 N. H. 393), and this is obviously the sound view. The general and sound view is that, as between the parties to the suit and those claiming under them as privies, and all others whose rights and liabilities are dependent upon the suit, the return is conclusive; but as to third persons, whose interests, though not connected with the suit, may be affected by the proceedings of the sheriff, and as to collateral facts or matters not necessary to be returned, it is at most prima facie evidence. Chadbourne v. Sumner, 16 N. H. 129; 8. c. 41 Am. Dec. 720. See also Hutchins v. Johnson, 12 Conn. 376; 8. c. 30 Am. Dec. 622. On the other hand, there is judicial authority in support of the view that his return is conclusive on the parties permitted by law to be made upon a designated agent of the corporation. It has been held that, however conclusive the return of service should be regarded as to the time, place, and manner thereof, it should be treated as only prima facie evidence of the fact of agency." "1 § 7508. Service upon Directors. The board of directors, sometimes called the board of trustees, are the managing body of every private corporation, except in rare and peculiar schemes to the record, even when collaterally called in question. Doe v. Ingersoll, 11 Smedes & M. (Miss.) 249; 8. c. 49 Am. Dec. 57, per Sharkey, C. J. The sheriff's return in an action of ejectment is only prima facie evidence of possession by defendant, etc. Cooper v. Smith, 9 Serg. & R. (Pa.) 26; s. c. 11 Am. Dec. 658. Omissions in a sheriff's return cannot be supplied by extrinsic evidence, but may be cured by an amendment under order of the court. Fairfield v. Paine, 23 Me. 498; I. c. 41 Am. Dec. 357. As to the amendments of the returns upon writs, see Malone v. Samuel, 3 A. K. Marsh. (Ky.) 350; s. c. 13 Am. Dec. 172; also elaborate note, 13 Am. Dec. 173-181; also Freeman v. Paul, 3 Me. 260; s. c. 14 Am. Dec. 237; Crocker v. Mann, 3 Mo. 472; s. c. 26 Am. Dec. 684; Barnard v. Stevens, 2 Aik. (Vt.) 429; 8. c. 16 Am. Dec. 733; Hefflin v. McMinn, 2 Stew. (Ala.) 492; 8. c. 20 Am. Dec. 58; Dewar v. Spence, 2 Whart. (Pa.) 211; s. c. 30 Am. Dec. 241 (denying amendment which renders subsequent proceeding void); Berry v. Griffith, 2 Harr. & G. (Md.) 337; s. c. 18 Am. Dec. 309. 1 Martin, Com., in Heath v. Missouri &c. R. Co., 83 Mo. 617, 624. Compare State v. O'Neill, 4 Mo. App. 221, where it is said that the return of the sheriff is conclusive as to the official character of the person served; and see Willamette Falls &c. Co. v. Williams, 1 Or. 112. So, in Illinois, the return of the officer as to the fact of the agency of the person upon whom he has served the process is not conclusive of his agency, but the question whether he was the agent of the defendant or not may be contested under a plea in abatement; though it is waived by pleading to the merits. Mineral Point R. Co. v. Keep, 22 Ill. 9; s. c. 74 Am. Dec. 124. This seems to be in conformity with an exceptional rule in that State that a sheriff's return of original process is only prima facie evidence of the truth of the matters therein recited, and may be put in issue by a plea in abatement. Sibert v. Thorp, 77 Ill. 45. See also Brown v. Brown, 59 Ill. 315, 317. So, in Alabama, as already seen (ante, § 7506), in order to support a judgment by default against a corporation, it is necessary that it should be proved to the court, otherwise than by the sheriff's return or the clerk's statement, that the person upon whom the summons and complaint were served occupied such a relation to the defendant that service upon him would affect the company with legal notice, and give the court jurisdiction. Southern Ex. Co. v. Carroll, 42 Ala. 437; Oxford Iron Co. v. Spradley, 42 Ala. 24; Talladega Ins. Co. v. McCullough, 42 Ala. 667. of incorporation. They wield this power for all purposes connected with its business. In the absence of any statute, they are therefore the primary persons upon whom process against the corporation is to be served. But service upon them will, in strictness, be good only where they, or a quorum of them, are assembled and sitting as a board; for as already seen, their agency is a joint agency, and single directors, unless otherwise acting as agents of the corporation, do not sustain such a relation to it as to affect it with notice. To obviate the effect of this principle, and to facilitate the service of process upon corporations, statutes have been enacted in some States permitting such service upon individual directors. Under such statutes the question has sometimes arisen as to whether service could be made upon the directors in case of the corporation becoming defunct, or in case of their resignation or abdication. In case of a defunct corporation, service upon the last board of directors has been held sufficient under such a statute, to give the court jurisdiction." 1 Ante, § 3967, et seq. Ante, § 3908. But see ante, § 5220, et seq. See, for a statement of this principle, Dock v. Elizabethtown Steam Man. Co., 34 N. J. L. 312, 317. • Under a statute of this kind (N. O. Rev. Code, ch. 26, § 24), it was held that the director upon whom process should be served must be one of the eleven of the principal directors of a particular bank, and not a director appointed by the authorities of the bank for the management of its branches or agencies. Webb v. Bank of Cape Fear, 5 Jones L. (N. C.) 288. Under a similar statute in Maryland, service upon two directors was enough, although the fact of the service had never been communicated by them to the other officers of the corporation. Boyd v. Chesapeake &c. Co., 17 Md. 195; s. c. 79 Am. Dec. 646. Swan & Cr. (Ohio) Stat. 363. • Warner v. Callender, 20 Ohio St. 190. Under a similar statute (N. Y. Code Civ. Proc., § 431), service could be had upon a director, although the directors had passed a resolution distributing all the property of the corporation to the stockholders, who surrendered their stock, and where, although the directors did not formally resign, the president declared, at the close of the meeting, that there were no longer any directors or stockholders, and that "we have forever dissolved." Carnaghan v. Exporters' &c. Oil Co., 11 N. Y. Supp. 172; 8. c. 32 N. Y. St. Rep. 1117. In an old case, the court seemingly proceeding under a statute (2 Rev. Stat. N. Y. 458, § 5), permitted a rule to be entered that service of summons on one of the trustees of a church should be deemed sufficient. Tom v. First Society &c., 19 Wend. (N. Y.) 25. § 7509. Service upon Officer after Term Expires or after Office Resigned or Abandoned. This brings us to the analogous question, under what circumstances the agency or official relation of the person upon whom process is served is deemed to have expired, so that the service will not affect the corporation with notice and give the court jurisdiction. Upon this subject it has been held, by the highest judicial authority, that where the statute prescribes a particular officer of a corporation, upon whom service of process against it is to be made, the service must be made upon that officer, and can be made upon no other;1 so that, if that officer resigns or otherwise vacates his office, a service made thereafter upon him will not be effectual to give jurisdiction, unless there is a statute continuing his functions until his successor is appointed. When, therefore, the governing statute provided for service upon the mayor and city clerk of a municipal corporation, and, prior to the service, the mayor had duly resigned his office and his successor had not been elected or appointed, it was held that a service upon him, in an action in a court of the United States, the marshal designating him in his return as "the last mayor of said city," was not such a service as would support jurisdiction. But this principle has no application where the officer, although he may have tendered his resignation, and although it may have been accepted by the proper authority, continues in office, under the governing statute, until his successor is appointed or chosen and qualified. In such a case, where the officer resigned, for the purpose of preventing the performance of the duties of his office, in favor of a creditor of the corporation, it was said that 1 Ante, § 7503; post, § 8021. The inside history of the litigation against the city of Watertown, Wisconsin, on its municipal bonds, makes it absolutely clear that the resignation was made for the purpose of preventing any lawful service of process being had upon the city in actions to enforce its obligations. 3 Amy v. Watertown, 130 U. S. 301. See also Watertown v. Robinson, 59 Wis. 513; s. c. on subsequent appeal, 69 Wis. 230. Compare Worts v. Watertown, 14 Fed. Rep. 534. It should seem that in such a case a service on the person who acts as mayor, in the particular case the president of the common council, would be sufficient. |