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.38 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.

35 1 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.

381 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

391 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.

41 1 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

$130. Constructive service.

In the federal courts, provision is made for service out of the jurisdiction of the court. The statutes of most of the states

Cas. No. 6,989. The court will not order service of a subpoena in equity on the defendant's solicitor to be a good service, except in cross suits and injunctions to stay proceedings at law on the ground of defendant's residing out of the state. Eckert v. Bauert, 4 Wash. C. C. 370, Fed. Cas. No. 4,266. See, also, Dunn v. Clarke, 8 Pet. (U. S.) 1; Pacific R. Co. v. Missouri Pac. Ry. Co., 3 Fed. 772; Crellin v. Ely, 13 Fed. 420; Lowenstein v. Glidewell, 5 Dill. 325, Fed. Cas. No. 8,575; Segee v. Thomas, 3 Blatchf. 11, Fed. Cas. No. 12,633; Muhlenburg County v. Citizens' Nat. Bank, 65 Fed. 537; Abraham v. North German Fire Ins. Co., 37 Fed. 731. A similar practice would, in all probability, be allowed in serving process under bills not original, viz., bills of revivor, supplemental bills, and bills of revivor and supplement, which are nothing more than continuations of the suit upon which they operate. Foster, Fed. Pr. (3d Ed.) § 96; Dunn v. Clarke, 8 Pet. (U. S.) 1. "The federal courts have refused to extend this class of cases so as to include a bill of interpleader, two of the defendants to which were engaged in an action between themselves in the same court, concerning the same matter, although in England such a mode of service might have been allowed." Foster, Fed. Pr. (3d Ed.) § 96, citing Herndon v. Ridgway, 17 How. (U. S.) 424. "Substituted service of a subpoena to appear and answer to a cross bill has been allowed, but not when the cross bill sought to introduce new and distinct matters into the original suit. The safer practice, when a defendant to a cross bill cannot be served personally, seems to be to procure an order staying his proceedings in the original cause until he answers the cross bill." Foster, Fed. Pr. (3d Ed.) § 96; Johnson Railroad Signal Co. v. Union Switch & Signal Co., 43 Fed. 331; Kingsbury v. Buckner, 134 U. S. 650; Rubber Co. v. Goodyear, 9 Wall. (U. S.) 788. See, also, Fidelity Trust & Safety-Vault Co. v. Mobile St. Ry. Co., 53 Fed. 850; Bowen v. Christian, 16 Fed. 730; Sawyer v. Gill, 3 Woodb. & M. 97, Fed. Cas. No. 12,399; Hunt v. Lever, 5 Ves. 147; French v. Roe, 13 Ves. 593. In Sawyer v. Sawyer, 3 Paige (N. Y.) 263, it is said: "By the practice of the English court of chancery, substituted service of the subpoena to appear and answer was sometimes permitted. Such substituted service, however, as to original proceedings, was generally, if not exclusively, confined to suits for injunctions to stay proceedings at law, and some other analogous cases. Smith v. Hibernian Mine Co., 1 Schoales & L. 238; Bond v. Newcastle, 3 Brown, Ch. 386." In nearly all, if not in all, of the classes of cases of an ancillary character, service may be, under some circumstances, on the attorney of record, or on some other agent of the defendant in such proceedings, with the same effect as though made in strict compliance with the rules relative to ordinary service.

contain provisions relative to service upon absent defendants, either by publication of notice of the pendency of the suit, or of an order directing them to appear. These various statutory provisions must be consulted when the occasion arises.2 The mode provided by statute is exclusive of any other.13

§ 131. Effect of substituted or constructive service.

Where the defendant is not within the jurisdiction of the court, process from its tribunals sent to him out of the state, and process published within it, are equally unavailing in proceedings to establish his personal liability. Such service may answer in all actions which are substantially proceedings in

44

Dunn v. Clarke, 8 Pet. (U. S.) 1; Minnesota Co. v. St. Paul Co., 2 Wall. (U. S.) 609; Hobhouse v. Courtney, 12 Sim. 140; Murray v. Vipart, 1 Phillips, 521; Adams, Eq. 324. But where there is a departure from the usual method of service, something on the record should support the judicial determination authorizing it. Gregory v. Pike, 50 U. S. App. 4, 79 Fed. 520; Murray v. Vipart, 1 Phillips, 521. The following form for an order of service taken from Curtis, Eq. Prec. 481, is referred to approvingly in Gregory v. Pike, 50 U. S. App. 4, 79 Fed. 520: "Upon motion," etc., "it was alleged that the defendant prosecutes the plaintiff at law, and cannot be found to be served with a subpoena, as by affidavit appears; and it was therefore prayed that service of a subpoena to appear to answer the plaintiff's bill upon the defendant's attorney at law be deemed good service on the defendant to compel him to appear to and answer the plaintiff's bill, which, upon hearing the said affidavit read, is ordered accordingly."

42 For the manner of serving absent defendants in the federal courts, see 1 Desty, Fed. Proc. (9th Ed.) § 25; Rev. St. U. S. § 738; 18 Stat. 472; Tug River Coal & Salt Co. v. Brigel, 31 U. S. App. 665, 67 Fed. 625; Ames v. Holderbaum, 42 Fed. 341; Bronson v. Keokuk, 2 Dill. 498, Fed. Cas. No. 1,928; Cheely v. Clayton, 110 U. S. 701; Forsyth v. Pierson, 9 Fed. 801.

43 Bracken v. Union Pac. Ry. Co., 12 U. S. App. 421, 56 Fed. 447. For the Illinois statutory provisions, see Rev. St. Ill. c. 22, §§ 12, 13. For cases construing this statute, see Hannas v. Hannas, 110 Ill. 53; Gilmore v. Sapp, 100 Ill. 297; Michael v. Mace, 137 Ill. 485, 27 N. E. 694; Connely v. Rue, 148 Ill. 207, 35 N. E. 824. Rev. St. Ill. c. 22, § 14, provides for service on a nonresident by copy of the bill, together with a notice of the commencement of the suit. See, for construction of this statute, Cloyd v. Trotter, 118 Ill. 391, 9 N. E. 507.

44 Pennoyer v. Neff, 95 U. S. 714.

rem; but where the entire object of the action is to determine the personal rights and obligations of the defendant,—that is, where the suit is merely in personam,-constructive service in this form upon a nonresident is ineffectual for any purpose, and a personal decree cannot be had.45

45 Pennoyer v. Neff, 95 U. S. 714; Smith v. Woolfolk, 115 U. S. 143; Harkness v. Hyde, 98 U. S. 476; Empire v. Darlington, 101 U. S. 87; Arndt v. Griggs, 134 U. S. 316. A personal judgment rendered in a state court in an action upon a money demand against a nonresident of the state, without personal service of process upon him within the state, or his appearance in the action upon service by publication, is without any validity. The state, having within its territory property of nonresidents, may hold and appropriate it to satisfy the claims of its citizens against them, and its tribunals may inquire into their obligations to the extent necessary to control the disposition of the property. If nonresidents have no property in the state, there is nothing upon which the tribunals can adjudicate. Substituted service by publication, or in any other authorized form, is sufficient to inform parties of the object of proceedings taken, where property is once brought under the control of the court by seizure or some equivalent act. The law assumes that property is always in the possession of its owner, in person or by agent, and proceeds upon the theory that its seizure will inform him that it is taken into the custody of the court, and that he must look to any proceedings authorized by law, upon such seizure, for its condemnation and sale. Process from the tribunals of one state cannot run into another state, and summon parties there domiciled, and publication of process or notice within the state in which the tribunal sits cannot create any greater obligation upon the nonresident to appear. Except in cases affecting the personal status of the complainant, and cases in which that mode of service may be considered to have been assented to in advance, the substituted service of process by publication allowed by statute where actions are brought against nonresidents is effectual only where, in connection with process against the person for commencing the action, property in the state is brought under the control of the court, and subjected to its disposition, by process adapted to that purpose, or where the judgment is sought as a means of reaching such property or affecting some interest therein; in other words, where the action is in the nature of a proceeding in rem. Pennoyer v. Neff, 95 U. S. 714. In Sawyer v. Sawyer, 3 Paige (N. Y.) 263, it was held that a bill could only be taken for confessed upon personal service of the subpoena, except in case of proceedings under the statute against absent defendants, or where the court ordered the appearance of the defendant to be entered upon his being brought into court; and that where the service of the subpoena had been upon the wife or servant of the defendant, at his house or