only be so when the treasurer, the then official, the officer then in a manner impersonating the company, should be served. Joseph Price was not here as the treasurer of the defendants. He did not then represent them. His act in coming was not the act of the company, nor was his remaining the business or act of any besides himself. He had no principal, and he was not an agent. He had no official status or representative character in this State." 39

Even if the officer casually does or attempts to do something for the corporation, which does not amount to entering into business, he cannot be served. Thus where the president of the foreign corporation came into the State to adjust a business dispute, process could not be served on him; 40 and so where being in the State on his own business he casually made a business offer for the corporation.41

Where the corporation does no business in the State, jurisdiction over it cannot be obtained by service on an officer who lives in the State.42

In a few jurisdictions decisions had been made which went further, and allowed suit against a foreign corporation after service upon an officer or agent named in the statute, although such agent or officer was only temporarily within the State.43 In the leading case Judge Earl said: "The object of all service of process is said to be to give notice to the party on whom service is made that he may be aware of and may resist what

39 Graves, J., in Newell v. Great Western Ry., 19 Mich. 336, 344. ^ 40 Good Hope Co. v. Railway B. F. Co., 22 Fed. 635; Louden Machinery Co. v. American M. I. Co., 127 Fed. 1008 (but see Houston v. Filer & H. Co., 85 Fed. 757).

41 Galveston City R. R. v. Hook, 40 Ill. App. 547.

42 Schmidlapp v. La Confiance Ins. Co., 71 Ga. 246; Taft v. Mills, R. I. 393.

5

43 Houston v. Filer & H. Co., 85 Fed. 757; Gravely v. Southern I. M. Co., 47 La. Ann. 389, 16 So. 866; Payne & Joubert v. East. U. L. Co., 109 La. 706, 33 So. 739; Klopp v. Creston C. G. W. W. Co., 34 Neb. 808, 52 N. W. 819, 33 A. S. R. 666; Hiller v. Burlington & M. R. R. R., 70 N. Y. 223; Pope v. Terre Haute, C. & M. Co., 87 N. Y. 137; Jester v. Baltimore S. P. Co., 131 N. C. 54, 42 S. E. 447.

is sought of him, and it is a general rule that any service must be deemed sufficient which renders it reasonably probable that the party proceeded against will be appraised of what is going on against him, and have an opportunity to defend." 44

These cases, however, must be regarded as overruled by recent decisions of the Supreme Court of the United States, in which it is held that no jurisdiction can thus be obtained over a foreign corporation which does no business in the State.45

The present doctrine in New York appears to be that if the corporation is in fact doing business in the State, service of process on an officer temporarily within the State is sufficient; 46 and there seems to be no reason why such a doctrine should not be enforced, although if the officer is got into the State by fraud or trick, or even unfairly, the service is invalid.47 And it would seem to be within the jurisdiction of New York, if a corporation is in fact doing business in the State, to provide for such service. A judgment against a foreign corporation obtained in a New York court after such service has been held valid in another State.48

§ 271. What agents may be served.

The statutes of each State settle with some particularity the question, what agents of a foreign corporation may receive service of process when no agent has been designated; and these statutes must be exactly followed.49 It is therefore not possible to find a rule which will determine in every jurisdiction the kind of agency which will authorize the agent to receive service for the company. At the same time, there is a general 44 Hiller v. Burlington & M. R. R. R., supra, at p. 227.

45 Conly v. Mathieson Alkali Works, 190 U. S. 406, 47 L. ed. 1113. 46 Porter v. Sewall S. C. H. Co., 7 N. Y. S. 166, 17 N. Y. Civ. Pro. Rep. 386; Weston v. Citizens' Nat. Bank, 64 App. Div. 145, 71 N. Y. S. 827. 47 Frawley B. & W. v. Pennsylvania Casualty Co., 124 Fed. 259; Olean St. Ry. v. Fairmount Construction Co., 55 App. Div. 292, 67 N. Y. S. 165. 48 J. B. Watkins L. M. Co. v. Elliott, 62 Kan. 291, 62 Pac. 1004, 84 A. S. R. 385.

49 Ante, § 269.

similarity in the statutes, so that the decisions of one State are likely to be of authority in another; and there are one or two general principles which help the interpretation of the statutes.

Perhaps the most important general principle is that where the principal is sought to be bound by notice to or process upon an agent, such agent should sustain such relation to the master, growing out of the character of his employment, as would, fide et fiducia, impose upon him the duty to report the fact to his principal or employer.50 This is the rule in respect to the law of agency in the matter of an effective notice to an agent to bind the principal.51

Service on any person in the employ of the corporation is therefore not necessarily sufficient. Service must be on some person having some control of the company's business in the place where service is made, though his field is a small one. Whether the person served is such an agent is a question of fact. 52

The following persons have been held proper agents to receive service of process:

The general financial agent of the company; 53 the general agent for a considerable territory, as the general western agent; 54 a local telegraph operator; 55 a special investigating agent,56 or other special agent with independent powers; 57 a travelling salesman or solicitor 58 (but not under the Missouri statute, where, as in several States, they are expressly ex

50 Strain v. Chicago Portrait Co., 126 Fed. 831.

513 Story on Agency, § 140.

52 Norton v. Atchison, T. & S. F. R. R., 97 Cal. 388, 30 Pac. 585, 33 A. S. R. 198; Hester v. Rasin Fertilizer Co., 33 S. C. 609, 12 S. E. 563; Pacific M. L. I. Co. v. Williams, 79 Tex. 633, 15 S. W. 478.

53 In re Hohorst, 150 U. S. 653, 37 L. ed. 1211.

54 Italian-Swiss Agricultural Colony v. Pease, 194 Ill. 98, 62 N. E. 317.

55 Barnes v. Western U. T. Co., 120 Fed. 550.

56 Connecticut M. L. I. Co. v. Spratley, 172 U. S. 602, 43 L. ed. 569. 57 Nelson Morris Co. v. E. Rehkopf, (Ky.) 75 S. W. 203.

58 Ryerson v. Steere, 114 Mich. 352, 72 N. W. 131; Abbeville E. L. & P. Co. v. Western E. S. Co., 61 S. C. 361, 39 S. E. 559, 85 A. S. R. 890, 55 L. R. A. 146.

cepted 59); a wharfinger; 60 a sub-agent with power to contract and settle accounts; 61 an attorney, under a statute allowing service on any person who has property of the corporation in his charge; 62 the resident agent of a building and loan association who receives and remits fines and dues, receives a commission and negotiates loans; an agent of a brokerage corporation who receives margins and commissions at an office hired by the corporation, and who transmits directly to the corporation; 64 a "cashier," and for the purposes of the code one who received the money from sales made by the corporation within the State was regarded as cashier.65 The person who was agent in the actual transaction out of which the suit grows is a natural person to serve, even though he received no compensation for his services and was not regularly employed."

67

Service of process will not bind a foreign corporation if made on the following persons:

An attorney at law; 68 a bookkeeper; 69 the manager of a company from which the defendant rented wires.70

A person who is not really employed by the corporation, but is merely an agent by estoppel or by construction of law, is not a proper person to serve.71

59 Strain v. Chicago Portrait Co., 126 Fed. 831.

60 Memphis & C. Packet Co. v. Pikey, 142 Ind. 304, 40 N. E. 527; Sievers

v. Dalles, P. & A. N. Co., 24 Wash. 302, 64 Pac. 539.

61 Burgess v. C. Aultman & Co, 80 Wis. 292, 50 N. W. 175.

62 Saunders v. Sioux City Nursery Co., 6 Utah, 431, 24 Pac. 532.

63 Pollock v. Carolina Interstate Bldg. & Loan Assn., 48 S. C. 65, 25 S. E. 977, 59 A. S. R. 695.

64 Boyd Commission Co. v. Coates, 24 Ky. L. Rep. 730, 69 S. W. 1090. 65 McCulloh v. Paillard Non-Magnetic Watch Co., 14 N. Y. S. 491. 66 Estes v. Belford, 22 Fed. 275, 23 Blatch. 1.

67 State v. Northwestern E. & L. Assoc., 62 Wis. 174.

68 Taylor v. Granite S. P. Assoc., 136 N. Y. 343, 32 N. E. 992, 32 A.S. R. 749. 69 New River Mineral Co. v. Seeley, 120 Fed. 193.

70 Evansville Courier Co. v. United Press, 74 Fed. 918.

71 Gottschalk Co. v. Distilling & C. F. Co., 50 Fed. 681; Doe v. Springfield Boiler Mfg. Co., 104 Fed. 684; Mikolas v. Hiram Walker & Sons, 73 Minn. 305, 76 N. W. 36; Coler v. Pittsburg Bridge Co., 146 N. Y. 281, 40 N. E. 779.

It is, of course, clear that in a controversy between the corporation and one of its agents, service on that agent is not service on the company. "A statute providing for the service of process upon any agent of a foreign corporation, when sued, need not contain an exception, as to actions brought against it by its agent, that process shall not be served on such agent to render such service void.

"The proposition that, under any circumstances, the defendant to an action may be compelled to appear and answer, or be subjected to a judgment upon a default, upon service of process upon his adversary, is so out of line with all of our ideas of right and the mode of procedure in courts of justice that we cannot for a moment suppose that the legislature ever intended to authorize such a proceeding." 72 This principle, however, does not prevent service of process against a corporation as garnishee upon the agent who is also the principal defendant.73

272. Officers of the corporation.

Any officer of the corporation (as distinguished from a mere agent) is a proper person to serve, at least if he is doing the business of the corporation within the State. Thus valid service may be made on the president, when he is engaged on the business of the corporation within the State; 74 and this is true though the company has given up its office, and the president is engaged in settling up the affairs of the company." So service may be made on a resident director,76 and on the superintendent or general manager."

77

75

72 Berkshire, C. J., in Rehm v. German I. & S. Inst., 125 Ind. 135, 25 N. E. 173.

73 Cathcart v. Cincinnati, H. & D. Ry., 108 Ga. 253, 33 S. E. 875.

74 Revans v. Southern Mo. & A. R. R. Co., 114 Fed. 982; Farrell v. Oregon Gold Min. Co., 31 Ore. 463, 49 Pac. 876.

75 American Locomotive Co. v. Dickson Mfg. Co., 117 Fed. 972.

76 Meyer v. Pennsylvania L. M. F. I. Co., 108 Fed. 169. See Conly v. Mathieson Alkali Works, 190 U. S. 406, 47 L. ed. 1113.

77 Rush v. Foos Mfg. Co., 20 Ind. App. 515, 51 N. E. 143; Hess v. Adamant Mfg. Co., 66 Minn. 79, 68 N. W. 774; Norton v. Berlin I. B. Co., 51 N. J. L.