certain cases, given by the Federal Act of March 3, 1875, sec. 8, was expressly continued by the Act of March 3, 1887.i Where service of process is by publication in place of personal service, a strict and literal compliance with the statutory provisions is necessary. The fact that a non-resident defendant visits the county once in two weeks cannot defeat plaintiff's right to serve him by publication.3 Service by publication may be had on a nonresident, in an action to establish a trust in real property, although an accounting and other relief is prayed for in the bill. Where an action to foreclose a mortgage does not seek a personal judgment, it is a proceeding in rem, and service by publication is sufficient. Incorporeal and intangible property such as a copyright, which cannot be seized or sold under execution, is not covered by this section which authorizes publication of process against nonresident defendants within the district where suit is brought. Substituted service can be had under this section to bring in by amendment a defendant who is subject to the jurisdiction of the court." Where a court of general jurisdiction orders such service it will be presumed, in favor of the jurisdiction, that service was made as ordered, although no evidence thereof appears of record. But if the order of publication is wholly unwarranted by law, the publication is as if it had never been made. The fact that the residences of many of the defendants cannot be ascertained by reasonable diligence does not authorize such service as to any whose residence can be ascertained. 10 The fact that a local paper in which service by publication is made has a "patent inside" printed out of the county cannot defeat the service on the ground that the paper is not printed in the county, within the meaning of the statute. 1 A summons published six times in a weekly newspaper is thereby served on defendant after fortytwo days from the date of the first publication thereof.12 Publication as against non-resident defendants, required by statute to be made once a week for four months, must be made not merely for sixteen weeks or four lunar months, but for four calendar months. 13

1 American F. L. M. Co. v. Benson, 33 Fed. Rep. 456.

2 Galpin v. Page, 13 Wall. 350; Cheely v. Clayton, 110 U. S. 701: Settlemier v. Sullivan, 97 U. S. 444.

3 Palmer v. McCormick, 30 Fed. Rep. 82.

4 Porter Land & W. Co. v. Baskin, 43 Fed. Rep. 323.

5 Martin v. Pond, 30 Fed. Rep. 15.

6 Non-Magnetic Watch Co. v. Association Horlogere Suisse, 44 Fed. Rep. 6.

7 Farmers Loan & T. Co. v. Houston & T. C. R. Co., 44 Fed. Rep. 115. 8 Applegate v. Lexington & Carter County Mining Co., 117 U. S. 255.

9 Hollingsworth v. Barbour, 4 Peters, 466.

10 Batt v. Proctor, 4 5 Fed. Rep. 515.

11 Palmer v. McCormick, 30 Fed. Rep. 82.

12 McDonald v. Cooper, 32 Fed. Rep. 745.

13 Guaranty Trust & S. D. Co. v. Green Cove Springs & M. R. Co. 139 U. S. 137.

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§ 9 g. Waiver of irregularities.—A Federal court has no authority to issue process to another district.1 So the process of a circuit court cannot be served without the district in which it is established except by special authority of law;2 and in proceedings for relief against an interfering patent under section 4918, Rev. Stats., no provision is made for service of notice on parties outside of the district. No judgment can be rendered against a defendant who has not been served with process in the manner pointed out, unless the defendant waives the necessary process by entering his appearance. A party defendant may plead service of process on him out of the district by plea in abatement of the suit.5 Where a defendant appears without taking exceptions, it is an admission of the regularity of the service; but if he appears and answers the bill he cannot, on the hearing, object that the bill contained a prayer for process, or that he was not served. And if he appears and pleads on the merits, it is a waiver of irregularity. A citizen of New Hampshire sued a Connecticut corporation in New Hampshire; the corporation having entered a general appearance, the objection to want of service was deemed waived. Illegality in the service of process by which jurisdiction is to be obtained is not waived by the special appearance of the defendant. It is waived only when in the first instance he pleads to the merits. 10 Defendant's appearance by attorney cures all antecedent irregularity of process. An authorized appearance in a suit is as effective to give jurisdiction as an actual service of process.12 The Act of February 28, 1839, by implication confers jurisdiction over non-residents of the district where the suit is brought. if

8

11

they voluntarily appear therein. 13 A general appearance is a waiver of the objection that the service of summons on him was irregular, because not made in the district of which he was an inhabitant, as required by Act of 1887.14

1 Herndon v. Ridgeway, 17 How. 424.

2 Toland v. Sprague, 12 Peters, 300; Ex parte Graham, 3 Wash. C. C. 446; Wilson v. Graham, 4 Wash. C. C. 53.

3 Liggett v. Miller, 1 Fed. Rep. 203.

4 Levy v. Fitzpatrick, 15 Peters, 167.

5 Van Antwerp v. Hulburd, 7 Blatchf. 426.

6 Gracie v. Palmer, 8 Wheat. 698.

7 Segee v. Thomas, 3 Blatchf. 11.

8 Toland v. Sprague, 12 Peters, 300; Pollard v. Dwight, 4 Cranch, 421 Irvine v. Lowry, 14 Peters, 293.

9 Flanders v. Ætna Ins. Co., 3 Mason, 158.

10 Harkness v. Hyde, 98 U. S. 476.

11 Knox v. Summers, 3 Cranch, 496; Pollard v. Dwight, 4 Cranch, 421; Gracie v. Palmer, 8 Wheat, 699; The Merino, 9 Wheat. 391; Farrar v. United States, 3 Peters, 459.

12 Hill v, Mendenhall, 21 Wall. 453; Knox v. Summers, 3 Cranch, 496; Pollard v. Dwight, 4 Cranch, 421; Gracie v. Palmer, 8 Wheat, 699; Farrar v. United States, 3 Peters, 459; Rhode Island v. Massachusetts, 12 Peters, 657; Walker v. Robbins, 14 How. 584; Washington A. & G. R. R. Co. v. Brown, 17 Wall 445; Creighton v. Kerr, 20 Wall. 8; Maxwell v. Stewart, 21 Wall. 70; 22 Wall. 77; Edwards v. United States, 103 U. S. 471; Johnson v. Waters, 111 U. S. 640.

13 Jones v. Andrews, 10 Wall. 327.

14 Foote v. Massachusetts Ben. Ass'n of Boston, 39 Fed. Rep. 43.

§ 92.

Process of arrest, restriction of. -But no person shall be arrested in one district for trial in another in any civil action before a circuit or district court. (Section 1 of Act of March 3, 1875, as amended by Act of March 3, 1887, as corrected August 13, 1888; 25 U. S. Stats. 433. See Rev. Stats. sec. 629.)

§ 92 a. Process by attachment.-The circuit court has no jurisdiction in attachment suits against a nonresident without the district.1 Process of foreign attachment cannot be properly issued by the circuit court in cases where defendant is domiciled abroad, or not found within the district, so that it can be served upon him,2 and this applies to corporations. Process of attachment

on the effects of a person not an inhabitant cannot be served; but if served not only on the property but on the defendant, jurisdiction attaches. 5 An assignee appointed by a bankrupt court of another district is within the rule, although there is property within the district. Where a citizen of the United States is a resident in a foreign country, the circuit court has no jurisdiction over a suit brought by an alien, although he has property within the district which may be attached. In attachment cases, the levy of the writ o attachment on the property is the one requisite essential to jurisdiction. A service upon the cashier of a bank of process of garnishment in the name, althouh not the full name, of the bank is sufficient" Jurisdiction of the res is obtained in attachment cases by a seizure under process of court. 10

8.

1 Hollingsworth v. Adams, 2 Dall. 336; Toland v. Sprague, 12 Peters, 300; Chaffee v. Hayward, 2) How. 208; Day v. Newark Manuf'g Co., 1 Blatchf. 628; Saddler v. Hudson, 2 Curt. 6; Mauldin v. Carll, 3 Hughes, 249; Picquet v, Swan, 5 Mason, 35; Richmond v. Dreyfous, 1 Sum. 131. 2 Toland v. Sprague, 12 Peters, 300; Anderson v. Shaffer, 10 Fed. Rep. 266.

3 Myers v. Dorr, 13 Blatchf. 22.

4 Pollard v. Dwight, 4 Cranch, 424.

5 North v. McDonald, 1 Biss. 57; Anderson v. Shaffer, 10 Fed. Rep. 266.

6 Shainwald v. Lewis, 5 Fed. Rep. 510.

7 Picquet v. Swan, 5 Mason, 35.

8 Cooper v. Reynolds, 10 Wall. 308.

9 Reynolds v. Smith, 17 Wash. L. R. 117.

10 Cooper v. Reynolds, supra.

§ 92 b. Return and proof of service.-The return of the marshal which shows exact compliance with the order of the court directing service of process, made in the manner in which it should be made, establishes sufficient service. The return of the marshal to a writ, that he has “arrested the property within mentioned," signifies that he has actually taken the property into his custody and under his control. A marshal's return to a warrant, that he has seized the property described therein, and held it subject to the further order of the court, gave the court jurisdiction over it. 3 A return to a writ of capias, "executed on the defendant Hardeman by leaving a true copy at his residence,"

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is insufficient In a collateral proceeding the complainant is not at liberty to traverse the marshal's return.

1 United States v. Clarke, ("The Confiscation Cases") 20 Wall. 92. 2 Pelham v. Rose, 9 Wall. 103.

3 Paige v. United States, 11 Wall. 268; Tyler v. Defrees, Id. 331. 4 Harris v. Hardeman, 14 How. 334.

5 Brown v. Kennedy, 15 Wall. 591. DESTY REMOVALS.-15.