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jurisdiction of the person of the defendant, for the reason that the writ, after the return day, ceases to be of any force or effect.20

§ 125. Service on persons under disability.

In the absence of statute or rule of court, a subpoena against husband and wife must be served on the husband, who is bound to have her appearance entered; but if the proceedings are against her separate estate, she must be personally served.21

If an infant is made a defendant, the subpoena must be served apon him personally, in the same manner as upon adults; but it is recommended, in such cases, to accompany such service with notice to the parent or guardian of the infant, or some competent person of the family, of the nature of the writ, and of the necessity for the infant's having a guardian appointed to appear and defend his interests.22 Service upon the father or mother has been held good in England, though it is, in strictness, proper to have an order to that effect.23

A lunatic, like an infant, is served personally, and it should be in the presence of some competent person, or with notice to his committee.24 It is said that, after inquisition, actual service on an insane person may be dispensed with as a prerequisite

20 Draper v. Draper, 59 Ill. 119; Lofland v. Jefferson, 4 Har. (Del.) 303; Crews v. Garland, 2 Munf. (Va.) 491; Blodgett v. Town of Brattleboro, 28 Vt. 695; Ferguson v. Ross, 5 Ark. 517.

21 1 Hoffman, Ch. Pr. 106; Jones v. Harris, 9 Ves. 488; Ferguson v. Smith, 2 Johns. Ch. (N. Y.) 139; Piggott v. Snell, 59 Ill. 108. For practice in the federal courts, see O'Hara v. MacConnell, 93 U. S. 150. 22 1 Barbour, Ch. Pr. 51; 1 Hoffman, Ch. Pr. 106. For service on infants, see Garnum v. Marshal, 1 Dickens, 77; Baker v. Holmes, 1 Dickens, 18; Massie's Heirs v. Donaldson, 8 Ohio, 377; Campbell v. Campbell, 63 Ill. 462; Taylor v. Lovering, 171 Mass. 303, 50 N. E. 612. For practice in Tennessee, see Britain v. Cowen, 5 Humph. (Tenn.) 315; Gibson, Suit in Ch. § 233, note, cited in Beach, Mod. Eq. Pr. § 176.

231 Hoffman, Ch. Pr. 107; Thompson v. Jones, 8 Ves. 141; Smith v. Marshall, 2 Atk. 70.

24 1 Hoffman, Ch. Pr. 108; 1 Barbour, Ch. Pr. 52; Ferguson v. Smith, 2 Johns. Ch. (N. Y.) 139. See, for service on insane persons, Taylor v. Lovering, 171 Mass. 303, 50 N. E. 612.

to the appointment of a guardian ad litem, where it is shown that the service would be dangerous to the health of the lunatic.25

§ 126. Service on corporations.

A subpoena, in case of a corporation, is usually served on the president, treasurer, secretary, or other principal officer.26 The statutes of the respective jurisdictions usually specify the persons upon whom such process may be served, and such statutes should be consulted when the occasion arises.27

25 Speak v. Metcalf, 2 Tenn. Ch. 214; Taylor v. Lovering, 171 Mass. 303, 50 N. E. 612. In Beach, Mod. Eq. Pr. § 175, it is said: "Such service is mere form, and may be dispensed with when shown to be dangerous to the lunatic;" citing Shaw v. Burney, 36 N. C. 150. See, also, Sullivan v. Andoe, 6 Fed. 641; Snowden v. Dunlavey, 11 Pa. 522; Stigers v. Brent, 50 Md. 214, 33 Am. Rep. 317.

261 Barbour, Ch. Pr. 52; 1 Hoffman, Ch. Pr. 108.

27 See Talladega Ins. Co. v. Woodward, 44 Ala. 287; Illinois Steel Co. v. San Antonio & G. S. Ry. Co., 67 Fed. 561; Lewis' Adm'r v. Glenn, 84 Va. 947, 6 S. E. 866. See supra, § 15. In Dinzy v. Illinois Cent. R. Co., 61 Fed. 49, it is said: "In the absence of a statute, the question whether the relation of the servant to the corporation is such that service upon the former is notice to the latter is frequently one of difficulty, as the common-law rule is that the service must be had upon some officer whose knowledge can be deemed to be the knowledge of the corporation. Hence we find that the subject is now generally regulated by statutory enactments in the several states." See, also, Lafayette Ins. Co. v. French, 18 How. (U. S.) 404. The service of a copy of the writ upon an agent of a foreign corporation is not sufficient to give jurisdiction to the state court to render personal judgment against it, unless it appears in the record that the corporation is engaged in business in the state, and the agent is appointed to act there. St. Clair v. Cox, 106 U. S. 350; Moulin v. Trenton Mut. Life & Fire Ins. Co., 24 N. J. Law, 234; Lafayette Ins. Co. v. French, 18 How. (U. S.) 407; United States v. American Bell Telephone Co., 29 Fed. 17. For service upon foreign corporations, see Doe v. Springfield Boiler & Mfg. Co., 104 Fed. 684, citing many authorities; Abbeville Electric Light & Power Co. v. Western Electrical Supply Co., 61 S. C. 361, 39 S. E. 559; Denver & R. G. R. Co. v. Roller, 100 Fed. 738, 49 L. R. A. 77; Henrietta Mining & Milling Co. v. Johnson, 173 U. S. 221: In re La Bourgogne, 79 Law T. (N. S.) 331.

§ 127. Service on prisoner.

It is not irregular to serve a subpoena personally upon a defendant who is imprisoned in the state prison for a term of years, on a conviction for a crime;28 and service upon a keeper of a prison will be ordered to be good service upon a prisoner in his custody.29

§ 128. Mode of service.

30

The mode of service is usually regulated by statute or rule of court. The English order was that the subpoena was to be served personally, or left at the defendant's dwelling house or place of residence, with one of the family.3 An hotel where one is temporarily sojourning is held not to be his place of abode.31 The statutory regulations for service of process must be strictly complied with, or there will be no jurisdiction.32

§ 129. Extraordinary or substituted service.

The court will, under special circumstances, order other modes of service to be deemed good in the particular case. As

28 Phelps v. Phelps, 7 Paige (N. Y.) 150.

29 1 Barbour, Ch. Pr. 51; 1 Hoffinan, Ch. Pr. 109; Joyce v. Joyce, 1 Hogan, 121. See, also, Johnson v. Johnson, Walk. (Mich.) 309.

30 1 Hoffman, Ch. Pr. 105; 1 Harrison, Ch. Pr. 300; Birdwood v. Hart, 3 Price, 176; Beames, Orders Ch. 169. United States Equity Rule 13 provides that the service of all subpoenas shall be by a dělivery of a copy thereof, by the officer serving the same, to the defendant personally, or by leaving a copy thereof at the dwelling house or usual place of abode of each defendant, with some adult person who is a member or resident in the family. Rev. St. Ill. c. 22, § 11, provides that service of summons shall be made by delivering a copy thereof to the defendant, or leaving such copy at his usual place of abode, with some person of the family of the age of ten years or upwards, and informing such person of the contents thereof. See Boyland v. Boyland, 18 Ill. 551; Kingman & Co. v. Mann, 36 Ill. App. 338; Greenman v. Harvey, 53 Ill. 386; Wilhite v. Pearce, 47 Ill. 413.

31 White v. Primm, 36 Ill. 416.

82 Greenwood v. Murphy, 131 Ill. 604, 23 N. E. 421; Cost v. Rose, 17 Ill. 276; Piggott v. Snell, 59 Ill. 106; Settlemier v. Sullivan, 97 U. S. 444. In a territorial court the practice in chancery as to serving process and notice of suit is regulated by the law of the territory, and not by the equity rules of the United States courts. Palmer v. Cowdrey, 2 Colo. 1.

a general rule, it will make such an order where the subpoena is proven to have come to the defendant's hands.33 This manner of service is termed "extraordinary service." It ought, in general, to be warranted by a previous order of the court, though sometimes, where an extraordinary service has been effected, the court has considered it to be good. Thus, where a person who had served a subpoena deposed that he hung it upon defendant's door, and within half an hour afterwards saw him abroad with a writ in his hand, which he supposed to be the subpoena, the court granted an attachment.34 It has been held good service, if a person keeps the door of his house shut, and refuses to open it, to leave the writ hanging upon the door of the house, or to put it into the house under the door or within the windows. None of these constitutes good service unless it can be proved that such subpoena afterwards came to the defendant's hands, or that he was in the house at the time, or had notice of it.35 Where a person made oath that he showed and offered to deliver the subpoena to the defendant, who refused to accept it, and did not appear, an attachment issued.36 In England, where an injunction was sought to restrain proceedings at law by a party who was abroad, the court ordered service upon the attorney or agent of such party to be good service upon the client and principal.37 In some cases, also, where injunctions are not sought, the court has permitted service upon the agent or factor of a defendant abroad, acting in respect of the property in dispute, to be good service upon the principal.38 As the statutes in most jurisdictions provide a mode of compelling the appearance of a defendant, in every case, whether he be absent, con

331 Hoffman, Ch. Pr. 105; Waters v. Berd, Cary, 104; Stow v. Maddock, Cary, 115; Parker v. Blackbourne, 2 Vern. 369; 1 Barbour, Ch. Pr. 52, 53.

34 Richers v. Stilman, Cary, 57; 1 Barbour, Ch. Pr. 52.

351 Barbour, Ch. Pr. 52, 53; Waters v. Berd, Cary, 104; Stow v. Maddock, Cary, 115.

361 Barbour, Ch. Pr. 53; Peris v. Thomas, Cary, 134.

1 Barbour, Ch. Pr. 53.

881 Barbour, Ch. Pr. 53.

cealed, or nonresident, or, in default thereof, allow complainant to take the bill as confessed against him, it is doubtful whether such substituted service would be allowed in such jurisdictions unless it were upon an attorney specially empowered to appear and defend; and it has been decided that where a solicitor has been specially authorized to appear in the very suit, if he refuses to do so, he cannot be compelled.39 It has been held in a series of cases that service upon a special attorney, or upon a person connected with an absent defendant by a common interest in the subject of the suit, shall be good service. It is presumed that in these cases the substituted service was originally permitted in order to warrant proceedings to a sequestration, that there might be no objection, on the hearing, that the absent defendant was not before the court; but the practice sprang up of stating in the bill that the absent defendant was out of the jurisdiction, and then the court proceeded with the other defendants as if the absent defendant was before it, and, if the property was in their possession, the court acted upon it.40 If extraordinary or substituted service is necessary, the safest course is for the complainant to apply in the first instance to the court by motion, supported by affidavit stating the circumstances, for an order that the particular mode required may be good service.41

39 1 Barbour, Ch. Pr. 53; Pulteney v. Shelton, 5 Ves. 147; 1 Hoffman, Ch. Pr. 110; Hinde, Pr. 91.

401 Hoffman, Ch. Pr. 109, 110; Parker v. Blackbourne, Finch, Prec. Ch. 99; Carrington v. Cantillon, Bunb. 107; Willings v. Loman, Hinde, Pr. 91; Smith v. Hibernian Mine Co., 1 Schoales & L. 241; Coles v. Gurney, 1 Madd. 187.

411 Barbour, Ch. Pr. 53. "Independently of any express statutory authority, there is no power in a court of equity to order actual personal service to be effected upon a defendant beyond its territorial jurisdiction; but in a few cases such courts have, for more than a century, assumed the power of ordering service to be made within their jurisdiction upon some person for the absent defendant, and have treated such service as valid." Shantwald v. Davids, 69 Fed. 701, quoting Foster, Fed. Pr. (3d Ed.) § 96; Batt v. Proctor, 45 Fed. 515; Hales v. Sutton, 1 Dickens, 26; Hyde v. Forster, 1 Dickens, 102; Hobhouse v. Courtney, 12 Sim. 140; Hyslop v. Hoppock, 5 Ben. 533, Fed

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