were brought against the corporation itself in case it were still in charge of its property.'

2

§ 8046. Where a Railroad Company has Leased its Road to Another Company, and, in the operation of the road the lessee company has failed to discharge its duties as a common carrier, the party damaged thereby has a remedy by action. against the lessee company for the breach of the duty which it has assumed, and it is not necessary for him to make the lessor company a party or to serve it with process. But if the lease has not been authorized, then the lessor company seeking to cast off its public duties, remains liable for the torts and non-feasance of the lessee company in the discharge of its public duties; and hence the person having a cause of action for such an injury may, if he sees fit, bring his action against the lessor company; and it seems that he may join both the lessor and the lessee. If the lessee is a foreign corporation, then, under a statute providing that "the lessees of any railroad. . . . shall be liable to suit of any kind in the same court or jurisdiction as the lessors, or owners of the railroad were before the lease," service may be made upon it by leaving a copy at the office of the superintendent, if that is the principal office of the lessee as it had previously been that of the lessor, under another statute," which would have made that mode of service sufficient if the railroad had remained in the hands of the lessor.

§ 8047. Service upon the Agent Who is Himself Plaintiff in the Action. -A statute providing for service of process upon any agent of a foreign corporation need not specially

1 Proctor v. Missouri &c. R. Co., 42 Mo. App. 124. The fact that the sheriff understood that he was making service only on the railroad corporation, is no objection to the jurisdiction, if in fact what he did and what he stated in his return exhibited a service against the receiver. Ibid.

Central R. &c. Co. v. Logan, 77 Ga. 804; s. c. 30 Am. & Eng. R. Cas. 63; 2 S. E. Rep. 465; 2 Rail. & Corp. L. J. 160; ante, § 5886.

3 Ante, §§ 5884, 5885.

Ga. Acts 1884-1885, p. 49.
Ga. Code, § 3407.

Hills v. Richmond &c. R. Co., 37
Fed. Rep. 660.

except the case where the action is brought against the corporation by the agent himself, because such an exception is engrafted upon the statute by the principles of the common law, and service upon such an agent in his own action is void.1

§ 8048. Evidence of Service of Process.-The return of a sheriff that he had served a writ on a foreign insurance company doing business within the State, by serving it on its “lawful attorney," has been held prima facie a good service of the writ, such as gives the court jurisdiction to render a personal judgment against the defendant. The court reasoned that the words "lawful attorney" in such a return should be regarded as meaning, prima facie, the attorney on whom the statute authorized such process to be served. But, notwithstanding this holding, the true theory of a sheriff's or marshal's return is, that it should state the facts relating to the service of the writ, and should avoid statements of conclusions of law, and that where it undertakes to state conclusions of law, no presumptions will be indulged in its favor. In the

1 Rehm v. German Ins. & Sav. Inst., 125 Ind. 135; s. c. 25 N. E. Rep. 173; ante, § 7528. Compare ante, § 5205, et seq.

2 Webster Wagon Co. v. Home Ins. Co., 27 W. Va. 314, 321.

Thus, where a marshal of the United States served a subpœna in equity upon a foreign corporation, and made return that he had served the writ on the defendant, the American Bell Telephone Company (which was a corporation doing business and found within the East and West Divisions of the Southern District of the State of Ohio), by reading the same to A. D. Bullock, president of the City and Suburban Telegraph Company, and delivering him a duly attested copy thereof (the City and Suburban Telegraph Company being an agent and partner of the American Bell Telephone Company within

402

the said Southern District of the State of Ohio), etc., it was held that this failed to show affirmatively a state of facts constituting a valid service upon the American Bell Telephone Company, either under the Judiciary Acts, the rules of practice governing the Circuit Courts of the United States, or the statute of Ohio providing for service of process on a foreign corporation having a "managing agent within the State. The return was irregular, in that the marshal did not confine himself to a statement of what he did in serving the process, but stated conclusions of law, and no presumptions could therefore be indulged in favor of it, so as to support the jurisdiction of the court over a non-resident corporation. United States v. American Bell Tel. Co., 29 Fed. Rep. 17.

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absence of a return, where there is a decree reciting the facts, if the decree recites that process was "duly served," this, it has been said, will be taken to be true on appeal.1

§ 8049. Construction of Particular Statutes Relating to Service of Process on Foreign Corporations.- Recollecting that the governing statute must be strictly, or at least substantially pursued, we are prepared for such holdings as that the advertising agent of a newspaper published by a corporation created under the laws of another State, who merely solicits and forwards advertisements, and collects bills for the same, receiving a commission therefor, is not an "agent," within the meaning of a general statute relating to the service of process on foreign corporations; that a so-called railway passenger agent, whose duty it is to solicit travel for his road, is not an "agent," within the meaning of a statute relating to service of process on foreign corporations, although he may have been employed to effect a compromise of the plaintiff's claim; and that a statute demanding service upon the president, secretary, treasurer, or local agent, is not satisfied with a service upon the manager of a domestic corporation."

§ 8050. Notice by Publication in Lieu of Personal Service. Proceeding upon the premise of the theory of the old law, that a foreign corporation was not suable at common law, and hence could only be served with process in the manner authorized by some statute, we find that it has been held that

1 Shafer v. O'Brien, 31 W. Va. 601, 606.

2 Mulhearn v. Press Pub. Co., 53 N. J. L. 150; 8. c. 20 Atl. Rep. 760.

Maxwell v. Atchison &c. R. Co., 34 Fed. Rep. 286.

Tex. Civ. Stat., art. 1223.

Under a statute of South Carolina, service of process upon a cause of action arising therein may be made by delivering a copy of the summons to the president or other head officer of the corporation, or any agent thereof anywhere; but unless the foreign corporation has property within the State, or the cause of

action arises therein, it can only be served by delivering, within the State, a copy of the summons to the president, or any resident agent thereof. Hester v. Rasin Fertilizer Co., 33 S. C. 609, mem.; s. c. 33 Am. & Eng. Corp. Cas. 44; 12 S. E. Rep. 563; construing 19 South Car. Stat. 835, amending 155 of the South Car. Code. Construction of Tenn. Stat. (Mill. & V. Code Tenn., §§ 35363539); Cumberland Teleph. &c. Co. v. Turner, 88 Tenn. 265; s. c. 12 S. W. Rep. 544; Chicago &c. R. Co. v. Walker, 9 Lea (Tenn.), 475; Peters v. Neely, 16 Lea (Tenn.), 275.

it may be served by publication,' and in no other mode, until the enactment of a statute providing for service of summons. This mode of service is generally authorized where the proceeding is in rem, and where there is property within the jurisdiction to be affected by the judgment, or decree. The eighth section of the Federal Judiciary Act of 1875 provides for this mode of service upon non-resident defendants, when suit is commenced "to enforce any legal or equitable lien upon, or claim to, or to remove any incumbrance or lien or cloud upon the title to real or personal property within the district." It has been held that this statute will not support jurisdiction by publication of a suit in equity against a foreign corporation to remove a cloud upon the title to letters patent for an invention, granted by the United States. The reasoning is that the statute refers only to proceedings against tangible property, and not to proceedings against property which is ideal and not actual, and which cannot be seized and sold under execution. As to the effect of jurisdiction acquired in this mode, it is not necessary to extend observations upon the principle that the courts of one State cannot extend their jurisdiction into another State, so as to reach either persons or corporations domiciled there. Upon this principle it has been held that courts of one State cannot render a valid judgment in personam against a foreign corporation in a case where it received no other notice than that made by publication, and where it does not appear to the action, but that such a judgment is a nullity.

1 Broome v. Galena &c. Co., 9 Minn. 239.

Sullivan v. La Crosse &c. Co., 10 Minn. 386.

As was done the year following these decisions: Guernsey v. American Ins. Co., 13 Minn. 278.

'Non-magnetic Watch Co. v. Association, 44 Fed. Rep. 6.

That a

foreign corporation may be proceeded against in equity, by advertising under a statute, as in the case of any other absent defendant: Cunningham v. Pell, 5 Paige (N. Y.), 607.

Dearing v. Bank of Charleston, 5 Ga. 497; 8. c. 48 Am. Dec. 300; recognized in City Fire Ins. Co. v. Carrugi, 41 Ga. 660, 670.

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§ 8059. Proceedings in Rem against Foreign Corporations. It may be confidently stated that where the foreign corporation has property situated within the domestic jurisdiction, the road is open to proceedings in rem in the domestic tribunals against such property, on the part of creditors and others having claims against it, whether such persons be residents or non-residents. Where the creditors or claimants against the property are domestic citizens or residents, the jurisdiction is undoubted; and where they are non-residents, the grounds of the jurisdiction seem to be equally clear, though there is a difference of opinion as to the propriety of exercising it.2

§ 8060. Foreign Corporations when not Deemed Non-residents within the Meaning of Attachment Laws. -We have already had occasion to note the principle that foreign corporations may become domesticated so as to be, for all purposes

Wilson v. Martin-Wilson Automatic Fire Alarm Co., 149 Mass. 24. That foreign corporations are "persons" within the attachment laws, see ante, § 7790.

Central R. &c. Co. v. Georgia Construction &c. Co., 32 S. C. 319; ante, §§ 8003, 8004; post, §§ 8065, 8073.