diction of a court in order to serve process upon him, and process is there served, the court will, on motion, set the process aside. 5

1 Batt v. Proctor, 45 Fed. Rep. 515.

2 Lackett v. Rumbaugh, 45 Fed. Rep. 23.

3 Chaffce v. Hayward, 20 How. 208; Toland v. Sprague, 12 Peters, 300

4 Providence Rubber Co. v. Goodyear, 9 Wall. 807.

5 Fitzgerald & M. Constr. Co. v. Fitzgerald, 137 U. S. 98.

§ 91.

When a part of several defendants cannot be served. When there are several defendants in any suit at law or in equity, and one or more of them are neither inhabitants of nor found within the district in which the suit is brought, and do not voluntarily appear, the court may entertain jurisdiction, and proceed to the trial and adjudication of the suit between the parties who are properly before it; but the judgment or decree rendered therein shall not conclude or prejudice other parties not regularly served with process nor voluntarily appearing to answer; and non-joinder of parties who are not inhabitants of nor found within the district, as aforesaid, shall not constitute matter of abatement or objection to the suit. (Rev. Stats. sec. 737.)

§ 91 a. At law. On a joint contract, where a citizen sues a citizen of the State where suit is brought and a citizen of another State, and both are served with process, jurisdiction attaches, and the voluntary appearance of the latter will not deprive the court of jurisdiction; as any of the parties to a joint contract may be sued. So an action lies against one of several executors; 3 and so of corporations where some of the corporators are citizens of another State than where the corporation was created. A creditor may maintain an action against partners, some of whom are not residents of the district,5 or an action on a promissory note, although one of the defendants is a citizen of the same State with plaintiff; but

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if there is no allegation as to the citizenship of one of the defendants, the verdict will be set aside, although he was not served with process."

1 McCloskey v. Cobb, 2 Bond, 16; Taylor v. Cook, 2 McLean, 516.

2 Clearwater v. Meredith, 21 How. 483.

3 U. S. v. Backus, 6 McLean, 413.

4 Louisville R. Co. v. Letson, 2 How. 497. But see Com. & R. Bank v. Slocomb, 14 Peters, 60.

5 Imbusch v. Farwell, 1 Black, 536.

6 Doremus v. Bennet, 4 McLean, 224. 7 Bargh v. Page, 4 McLean, 10.

§ 91 b. In equity. This section is only a legislative affirmance of a previously established rule of equity;' as in equity parties are either formal, and persons having an interest, and who should be made parties, are necessary parties, without whom no decree can be entered. Jurisdiction is not defeated by naming a person as one who would have been joined, except that joining him would defeat the jurisdiction.

1 Shields v. Barrow, 17 How. 130.

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2 Shields v. Burrow, 17 How. 130; Northern Ind. R. Co. v. Mich. Cent. R. Co., 15 How. 233; Ribon v. Railroad Cos., 16 Wall. 416. See Winter v. Ludlow, 3 Phila. 464.

3 Heriot v. Davis, 2 Wood. & M. 229; Vattier v. Hinde, 7 Peters, 252.

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§ 91 c. On corporations.-A corporation can have no existence beyond the limits of the State in which it is created; hence service of process upon its officers in another State will not confer jurisdiction upon a circuit court in that State over the corporation. As a corporation cannot be made a party to a civil suit by original process in any other district than the State wherein it was created, so a national bank cannot be sued out of the district in which it is loated; but a trading corporation may be sued in any district in which it conducts its business,* and a foreign corporation may be sued in a district other than that of which it is a resident, if it has a duly au thorized resident agent qualified to acknowledge service of process; or if it consents that process may be served on its agent in such State, jurisdiction attaches. A foreign corporation doing business within the State is liable to suit by service of process on an agent, although there is no State law requiring it to appoint an agent to accept

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service of process. 8 A State law providing for service of summons on the agent or officers of a foreign express company does not apply to cases arising outside the State. A service of process under the provisions of a law of the State on a non-resident corporation will not authorize a personal judgment against such corporation. 10 Service upon a foreign corporation, made upon a "managing agent," is sufficient, within the meaning of New York code as upon a person "found within the district."11 circuit court acquired jurisdiction of a railroad company, the original defendant, by service of process on a director of the road. 12 Under a State statute providing for service of process against a railroad company upon one of certain officers if such officer is in the county, otherwise for service upon any agent, process of a Federal court must be served on such officer if within the Federal district. 13 Where the libelee-a foreign corporation-had, in compliance with the law of Louisiana, appointed an agent at New Orleans, on whom legal process might be served and it was there served upon him, this is good service in an action at law, and is equally good in admiralty.1 Where a corporation voluntarily comes by its agents or officers within the jurisdiction of another State, and there engages in business, it becomes amenable to the process of the courts of the latter State, if the laws thereof make provision to that effect.15 Service of summons and petition on the insurance commissioner of Missouri is prima facie valid service on a foreign insurance company where the company has so stipulated. 16 Such a stipulation is a waiver of the right of the corporation to exemption, under the Act of Congress of March 3, 1887, from suit in a Federal court in that State. Depositing a process in a place provided or designated by the officer is equivalent to a manual delivery to him. 18 So service of process against a foreign corporation running a railroad as lessee is properly made by leaving a copy at the office of the superintendent, 19

1 Northern Ind. R. Co, v. Michigan Cent. R. Co., 15 How. 233; Day v. Newark Manuf'g Co., 1 Blatch. 623; Decker v New York B. & P. Co., 11 Blatchf. 76; Myers v. Dorr, 13 Blatchf. 22.

2 Myers v. Dorr, 13 Blatchf. 23.

3 Main v. Second Nat. Bank, 6 Biss. 26.

4 Hayden v. Androscoggin Mills, 1 Fed. Rep. 93.

5 Runkle v. Lamar Ins. Co., 2 Fed. Rep. 9; Moch v. Va. Fire & M. Ins. Co., 10 Fed. Rep. 696.

6 Ex parte Schollenberger, 96 U. S. 369; Knott v. Southern L. Ins. Co., 2 Woods, 479; Ehrman v. Teutonia Ins. Co., 1 Fed. Rep. 471; Runkle v. Lamar Ins. Co., 2 Fed. Rep. 9; Fonda v. British Am. Ins. Co., 10 Ch. L. N. 309: Albright v. Empire Trans. Co., 18 Alb. L. J. 313. Contra: Pomeroy v. New York & N. H. R. Co., 4 Blatchf. 120; Southern & A. T. R. Co. v. New Orleans M. & T. R. Co., 2 Cent. Law J. 88: Stillwell v. Empire F. Ins. Co., 4 Cent. Law J. 463.

7 Albright v. Empire Trans. Co., 18 Alb. L. J. 313. See Browel v. T. & B. R. Co., 3 Fed. Rep. 761; Moch v. V. Fire & M. Ins. Co., 10 Fed. Rep. 696. 8 Wilson Pack. Co. v. Hunter, 11 Ch. L. N. 207.

9 Grover v. Amer. Express Co., 11 Fed. Rep.

10 Pennoyer v. Neff, 95 U. S. 714; Parrott v. Alabama G. L. Ins. Co., 5 Fed. Rep. 391.

11 Hat Sweat Mfg. Co. v. Davis Sewing Mach. Co., 31 Fed. Rep. 291.

12 Washington A. & G. R. R. Co. v. Brown, 17 Wall. 445.

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

11 Re Louisville Underwriters, 134 U. S. 438.

15 Riddle v. New York, L. E. & W. R. Co., 39 Fed. Rep. 290.

16 Knapp etc. Co. v. National Mut. Fire Ins. Co., 30 Fed. Rep. 607. 17 Consolidated Store Service Co. v. Lamзon Consolidated Store Service Co., 41 Fed. Rep. 833.

18 Michigan Ins. Bank v. Eldred, 130 U. S. 693.

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

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§ 91 d. Insufficient service on foreign corporation.-Service of process cannot be made upon the passenger agent of a foreign railway company. Service on the president of a foreign corporation, while temporarily within the State, gives no jurisdiction. Such service is insufficient where the only business done in the State had been the borrowing of money upon its bond and mortgage.3 Where a sister State corporation is not represented in the State it is not within the State so that service can be made upon it. Service upon an officer or agent of a foreign corporation which has no office and transacts no business within the State, while he is casually in the State on private business, is not valid.5 Service on a director of a foreign corporation who is found within the State, but not in his official capacity, is not sufficient to give jurisdiction. 1 Maxwell v. Atchison, T. & S. F. R. Co., 34 Fed. Rep. 286.

2 Golden v. Morning News, 42 Fed. Rep. 112.

3 Clews v. Woodstock Iron Co., 44 Fed. Rep. 31.

4 Fitzgerald etc. Co. v. Fitzgerald, 137 U. S. 98.

5 Reifsnider v. American Imp. Pub. Co., 45 Fed. Rep. 433.

6 Bentlif v. London & C. Finance Corp., 44 Fed. Rep. 667; 9 R. R. & Corp. L. J. 236. And see United States v. American Bell Teleph. Co., 29 Fed. Rep. 17.

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§ 91 e. A personal privilege, and may be waived. This section is not a denial of jurisdiction, but the grant of a privilege to defendant not to be sued out of the State where he resides, unless served with process in the State where suit is brought;1 and under its provisions the privilege granted to him may be waived, as by a voluntary appearance; and his appearance without process is a waiver of the privilege to object to the non-service of process. So appearing and moving to dismiss the bill for want of equity, or an appearance unaccompanied by a plea claiming the privilege, is a waiver of it. For an appearance to confer jurisdiction, the party must be a party to the record. If a party is a non-resident, he may appear in the suit and plead his personal privilege, and such an appearance is not a waiver;' nor is it a waiver to appear and plead to the jurisdiction by an attorney. 1 10 Where a bill was filed in the southern district of Mississippi against four defendants, two of whom appeared for the purpose of moving to dismiss the bill, and the other two declined to appear, and process was not served on them, the court had no alternative but to dismiss the bill, they being necessary parties. 11 If parties are residents of another State, they may be summoned where there is property within the jurisdiction upon which a lien is claimed.12

1 Harrison v. Rowan, Peters C. C. 489.

2 Flanders v. Ætna Ins. Co., 3 Mason, 153.

3 Harrison v. Rowan, Peters C. C. 489

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4 Gracie v. Palmer, 8 Wheat. 699; Segee v. Thomas, 3 Blatchf. 11; Kelsey v. Pennsylvania R. Co., 14 Blatchf. 89; McCloskey v. Cobb, 2 Bond, 16; Flanders v. Etna Ins. Co., 3 Mason, 158; Harrison v. Rowan, Peters C. C. 489; Clarke v. Navigation Co., 1 Story, 531.

5 Jones v. Andrews, 10 Wall. 327.

6 Harrison v. Rowan, Peters C. C. 489. See Flanders v. Etna Ins. Co., 3 Mason, 158.

7 Kentucky S. M. Co. v. Day, 2 Sawy. 468.

8 Teese v. Phelps, 1 McAll. 17.

9 Harrison v. Rowan, Peters C. C. 489.

10 Commercial Bank v. Slocomb, 14 Peters 60; Thayer v. Wales, 5 Fish. Pat. Cas. 448; Decker v. New York B. & P. Co., 11 Blatchf. 76.

11 Herndon v. Ridgway, 17 How. 124.

12 Mercantile T. Co. v. Portland & O. R. Co., 10 Fed. Rep. 663.

§ 91 f. Service by publication. The right to proceed against a non-resident defendant by publication in