principles of the common law. Thus, if the statute designates the secretary, it will not be enough to leave a copy of the notice with one who is at once its president, treasurer, financial manager, and general agent. So, where the statute designates the officer upon whom the service may be made, an attorney of the corporation cannot accept service so as to give the court jurisdiction to proceed. On the other hand, a service upon such officer will be good. 87807. Proof Aliunde of Official Character. - In one jurisdiction it has long been the settled principle, in the case of service of process upon a corporation by delivering a copy to its president or other officer, to require on the part of the plaintiff proof that such person was at that time such officer of the corporation; and it must be recited in the judgment that this was proven to the satisfaction of the court, or, in the absence of a voluntary appearance, the judgment will be void.' Thus, a judgment by default, without such recital, is void. This rule applies to service of a garnishment." land Co., 40 Conn. 401; ante, §§ 7503, 7509; post, § 8021. As to service of garnishment on foreign corporations, see post, § 8080. 'Raymond v. Rockland Co., 40 Conn. 401. 'Northern Central R. Co. v. Rider, 45 Md. 24. requested the officer to deliver the notice to one of their clerks, which he did, it was held equivalent to delivering it to them, and the service was good. Davidson v. Donovan &c. Canal Co., 4 Cranch C. O. (U. S.) 578. Planters' &c. Bank v. Walker, 1 Minor (Ala.), 391; Lyon v. Lorant, 3 Ala. 151; Wetumpka &c. R. Co. v. Cole, 6 Ala. 655; Montgomery &c. R. Co. v. Hartwell, 43 Ala. 508, and cases cited, p. 511. Compare ante, § Thus, in Nebraska by force of statute, where the garnishee is a corporation, the notice "shall be left with the president or other head of the same, or the secretary, cashier, or managing agent thereof." Code Neb., 7507. 935. Under this statute where a book-keeper of a bank was the only person whom the officer found in the bank attending to its business during its business hours, it was held that a service upon him was good. First Nat. Bank v. Turner, 30 Neb. 80; 8. c. 46 N. W. Rep. 290. Where the president and directors of the corporation It follows that a return which recites, "Served on the Montgomery & Eufaula Railroad Company, the garnishee, by leaving a copy of the garnishment with Lewis Owen, president of said road," is insufficient to authorize a judgment nisi, on failure to answer, against the railroad company, in the absence of an ap 7808. When Statute Relating to Service of Ordinary Process Governs. It has been held in Georgia, in the absence of any statute directing a special method of service in such actions, that the only manner in which garnishment can be served upon a corporation is by personal service upon its president, or other officer fulfilling the duties of president for the time being, as at common law; and that service upon an agent under a statute authorizing a summons so to be served is valid.1 But this decision seems to have proceeded upon an unsound view, and it was better held in Maryland that the word "process" used in a statute relating to ordinary actions against corporations, which authorized service upon the president or any director or manager or other officer, was sufficiently comprehensive to embrace a notice of garnishment; so that a service of such notice on two officers and directors was sufficient.2 § 7809. Officer to Make Disclosure not Necessarily Officer to Receive Service. Upon this subject it should be kept in mind that, upon principle, it is not necessary that the officer or agent of the corporation upon whom the notice of garnishment is served, should sustain such a relation to the corporation that the disclosures made by him, in case he should undertake to answer for it, would bind it. pearance; but proof that Lewis Owen was the president of the company at the time of the service must have been made to the court, and the fact must appear in the judgment. Montgomery &c. R. Co. v. Hartwell, 43 Ala. 508. 1 Clark v. Chapman, 45 Ga. 486. See also Hebel v. Amazon Ins. Co., 33 Mich. 400. Boyd v. Chesapeake &c. Canal Co., 17 Md. 195; s. c. 79 Am. Dec. 646. It was further held that, where the notice was given to one of the directors in his official capacity, to the end that it might be communicated by him to the board, the corporation was bound As we shall presently by it, though it was not communicated, since the statute authorized service on 66 'any director." Ibid. Where the statute relating to the service of ordinary process upon corporations prescribed that service must be had on the president or other head of the corporation, or on the secretary, treasurer, or other managing agent thereof, and there was no special provision relating to the service of notice of garnishment, such a notice could not be served upon the paying-teller of a banking corporation so as to bind the corporation. Kennedy v. Hibernia &c. Society, 38 Cal. 151. see, the question what agent is entitled to bind the corporation by his disclosures made in the garnishment proceeding, is quite a different question from the question what agent sustains such a relation to the corporation that notice to him will, in theory of law, affect the corporation with knowledge.1 If there is no special provision of statute on the subject, then a service of the garnishment upon any officer or agent who sustains such a relation to the corporation that a service upon him of a summons, in an ordinary action in personam, would give the court jurisdiction to proceed to judgment, will give the court jurisdiction to proceed against the corporation, and to compel a disclosure as garnishee, or to render a judgment by default or confession in the absence of a disclosure. This will be more apparent when it is considered that, although, as against the principal debtor, who may be a non-resident, the action is merely a proceeding in rem, having for its object to compel his appearance by impounding his property, and to satisfy the debt which he owes the plaintiff out of that property, yet, in so far as it is a proceeding against the person or corporation holding that property for the principal debtor, it is in the nature of an action in personam.3 § 7810. Authority of Officer or Agent to Make Disclosure. If the statute prescribes what officer or agent of the corporation must make the disclosure, it is conceived that it must be followed; and, outside of any statutory provision, it is obvious that the corporation cannot be bound by the act of every agent who may the other hand, it seems equally clear on principle, that if the corporation is duly served with garnishment so as to be affected with notice under the principles relating to service of process upon corporations, then it is bound to appear in the person of some officer capable of making the disclosure for it; and volunteer to make the disclosure in its behalf. On Duke v. Rhode Island Locomotive Works, 11 R. I. 599. Kennedy v. Hibernia &c. Society, 88 Cal. 151. Ante, § 7804. Karp v. Citizens' Nat. Bank, 76 Mich. 679; 8. c. 43 N. W. Rep. 680. "A failure to answer by some officer or agent who can answer knowingly, would authorize a judgment for when it does appear by one of its officers, the natural presumption would be that such officer was authorized by it to make the disclosure. In the absence of any statute specially controlling the question, the obvious legal rule would be that whatever officer or agent of the corporation sustains such a relation to it as to possess authority to bind it by his declarations or admissions in respect of the subject-matter of the garnishment, would be its officer or agent to make the disclosure; and this question has already been considered.' And here another distinction must be taken, and that is between the power of an officer or agent of a corporation to bind it by his admissions in the form of a pleading, and his power to make admissions as a witness which will be competent evidence against it, subject to explanation or rebuttal. The power to testify to the fact that the corporation owes a debt, and the power to appear as the representative of the corporation and confess that it owes a debt, for the purpose of the rendition of a judgment against it, which shall be a complete estoppel against it, are essentially different, and the latter must rest upon some clear principle of agency. There must have been an authorization in some form, clearly expressed or fairly implied. As want of an answer, subject to be made final, as in other cases." Stone, C. J., in Ex parte Cincinnati &c. R. Co., 78 Ala. 258, 260. 1 Ante, §§ 4656, 4777, et seq., 4912, et seq. It has been held that an authority to an agent "to appear before all judges and justices of the peace, in any court or courts, there to do, say, pursue, implead, arrest, attach, and prosecute, as occasion shall be or require," does not authorize the agent to make a conclusive acknowledgment of a notice by the corporation in an answer in his behalf as garnishee. Dickson v. Morgan, 7 La. An. 490. This holding can be regarded as hardly more than the opinion of a single judge; for it is weakened by the fact that two of the judges concurred on another ground, and that one of them dissented. Ibid. Two judges, Eustis, C. J., and Rost, J., were of the opinion that the power of answering interrogatories on oath cannot be conferred upon one person by another. Ibid. But this is a clear aberration. The power of answering interrogatories can be conferred by one person on another, and whether the answer shall be on oath or without oath, is a question which is modal in its character, relating merely to the course of procedure in the particular forum. Power can be conferred by one person upon another to bind the former by his admissions, and everything else relates merely to the mode of making the admissions. It already stated,' it does not at all follow, as a principle of statutory construction, that the answer is to be made by the officer designated by statute to receive service of summons. Therefore, where the statute designates the officer on whom the notice is to be served, it will be sufficient if the affidavit in answer is made by some other appropriate officer. Thus, where the writ was served on the treasurer of a corporation, and the affidavit making this disclosure was made by its assistant treasurer, this was sufficient." § 7811. Process Directed to Corporation and not to Agent. We have already seen that, according to the theory of some courts, denied by others, if the corporation is the principal debtor, its officer or agent holding its funds may be summoned as garnishee by process directed against him in his own provided that the summons cipal officer of such corporation," and that it should "be the duty of the officer so served, or of the proper officer of such corporation having knowledge of the facts, to appear before the justice at the return day," etc., -it was held that the assistant treasurer of a railroad company was its proper officer, for the purpose of making a disclosure in a proceeding in which it had been summoned as garnishee. Whitworth v. Pelton, 81 Mich. 98; 8. c. 45 N. W. Rep. 500. The general agent of a foreign corporation doing business in Michigan, who is authorized to receive service of process in its behalf, has authority, under the governing statute, when he has been served with garnishee process against his company, to make an answer or disclosure in its behalf, and the corporation is not to be considered in default for want of an answer after a in the garnishment proceeding might disclosure filed by such agent. Lor man v. Phoenix Ins. Co., 33 Mich. 65. be served on the president, cashier, Hunt, 39 Mich. 469. |