The fact that a claim against an insolvent corporation was purchased § 87 for less than its par value does not authorize the receiver to refuse its allowance on the basis of par value. (Dimmick v. W. Fred Quimby Co., 21 N. J. L. J., 339.)

VIII.-Service of Process.

87. Process against corporations of this state. In any personal action commenced against a corporation in any of the courts of law of this state, the first process to be made use of may be a summons, a copy whereof shall be served on the president, or other head officer or agent in charge of its principal office in this state, or left at his dwelling-house or usual place of abode, at least six days before its return; and in case. the president or other head officer or agent cannot be found to be served with process, and has no dwelling-house, or usual place of abode within this state, a copy of the summons shall be served on the clerk or secretary of the corporation, if any there be, and if no clerk or secretary, then on one of its directors, or left at his dwelling-house, or usual place of abode, six days before its return.

P. L. 1865, p. 467; Act of 1875, §§ 87-88.

Sections 87 and 88 relate to the service of process in personal actions, where the fruits of the litigation are secured by a common law judgment to be executed upon the property of the defendants. They do not apply to proceedings under prerogative writs (mandamus, etc.), which are enforceable only by attachment for contempt in disobeying the commands of the court (Freeholders of Mercer v. Penna R. R. Co., 41 N. J. Law, 250). A writ of mandamus should be directed either to the corporation or to the select body within the corporation, whose province and duty is to perform the particular act, or to put the necessary machinery in motion to secure its performance, and the return must be made by those to whom the writ was directed (Id.).

But service of such writs may be made on foreign corporations by serving on an officer or agent as prescribed by Sections 102 and 103, post.

Sections 87 and 88 refer to the mode of serving process in the higher courts, and not when issued by justices of the peace. Such process must be served in the manner prescribed by the Small Causes Act. (D. L. & W. R. R. Co. v. Ditton, 36 N. J. Law, 361; Wheeler & Wilson Mfg. Co. v. Carty, 53 N. J. Law, 336; Gen. Stat., p. 1865, § 18.)

Section 87 prescribes the manner in which a summons may be served, and has no application beyond the first process in the cause. As to subsequent process "everything must depend upon the circumstances of "each particular case, having regard to the purposes for which the cor

§87a-88"poration was created, and the nature of the duties of the person on whom "service is made, either in his official capacity, or by the usages of the

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company. The principle is, that it must be made upon some person upon whom the duty devolves by virtue of his official position, or of his 'employment, to communicate the fact of service to the governing power "in the corporation. A service on such a person is a service on the cor"poration." (Dock v. Elizabethtown Steam Mfg. Co., 34 N. J. Law, 312, 318; Facts Pub. Co. v. Felton, 52 N. J. Law, 161. But see Norton v. Berlin Iron Bridge Co., 51 N. J. Law, 442.)

There is nothing in this section to prohibit the voluntary appearance of a corporation. (Beebe v. George H. Beebe Co., 46 Atl. Rep., 168.)

87a.* Service of declaration on corporation. Where the defendant is a corporation, service [of the declaration] may be made by delivering the same to the president or other head officer, or to the secretary or clerk thereof, personally, or by leaving the same at his dwelling-house or place of abode; and the plaintiff, if he shall be entitled to costs in the cause, shall be allowed for such service the sum of two dollars for each defendant so served, not exceeding three, and the same to be included in the taxed bill of costs.

An act to regulate the practice of courts of law (Revision of 106. See Gen. Statutes, p. 2551.

1874), 88. Process against foreign corporations. In all personal suits or actions hereafter brought in any court of this state, against any foreign corporation, process may be served upon any officer, director, agent, clerk or engineer of such corporation, either personally or by leaving a copy thereof at his dwelling-house or usual place of abode, or by leaving a copy at the office, depot or usual place of business of such foreign corpo

ration.

Act of 1875, 88.

In 1891 it was decided that a justice's court had no jurisdiction of a foreign corporation. (Wheeler & Wilson Mfg. Co. v. Carty, 53 N. J. Law, 336.) The next year, however, the Legislature amended the Small Causes Act so as to confer jurisdiction upon the justice's court, providing "that any body politic or corporate of this State, or of any other State, "may sue and be sued in any court for the trial of small causes, in any "action or proceeding over which said court has jurisdiction."

P. L. 1892, p. 182; Gen. Stat., p. 1896.

Service of process on foreign corporation. The person to whom a foreign corporation commits the management and control of its business here becomes the agent of the corporation for the purpose of receiving service of process in all actions arising in this State out of the conduct of the * Arbitrary number; section inserted here merely for convenience of reference.

business. (Moulin v. Insurance Co., 24 N. J. Law, 222, 234; S. C., 25 N. § 89-90 J. Law, 57, 65; National Condensed Milk Co. v. Brandenburgh, 40 N. J. Law, 111; Norton v. Berlin Iron Bridge Co., 51 N. J. Law, 442.)

The line between those who represent and those who do not represent a foreign corporation for the purposes of this act is defined in Mulhearn v. Press Pub. Co., 53 N. J. Law, 150. See also Carroll v. N. Y. N. H. & H. R. Co., 46 Atl. Rep., 708.

In Carroll v. N. Y. N. H. & H. R. Co., 46 Atl. Rep., 708, it was held that service on the engineer in charge of defendant's boat for transferring cars from Jersey City to the Harlem River was not good.

The United States Circuit Court, however, in Devere v. D. L. & W. R. R. Co., 60 Fed. Rep., 886, held that service on a locomotive engineer was good.

An officer of a foreign corporation casually within the State on business of his own, where the corporation has never transacted any business within the State, is not a proper person to serve with process against the company. (Freeholders of Mercer v. Penna. R. R. Co., 42 N. J. Law, 490; Moulin v. Ins. Co., 25 N. J. Law, 57, 61.)

An officer of a foreign corporation who comes into the State for the purpose of giving testimony is privileged from service of a summons in an action against the corporation while he is so in attendance as a witness, and a service made under such circumstances will be set aside. (Mulhearn v. Press Pub. Co., 53 N. J. Law, 153.)

Service of process on a person whose only connection with the company was a contingent one which had ceased before the commencement of the action, was held not good. (Security Insurance Co. v. Hass, 17 N. J. L. J., 374.)

See also, as to service on foreign corporations, N. J. & Camden Rolling Mill Co. v. Swede Iron Co., 32 N. J. Law, 15.

As to the service of prerogative writs against foreign corporations, see Sections 102 and 103, post.

89. When defendant in court.-When the sheriff or other officer shall return such summons "served" or "summoned," the defendant shall be considered as appearing in court, and may be proceeded against accordingly.

Act of 1875, § 89.

Where a sheriff in making his return added other words after the statutory indorsement "served," such words were held to be surplusage. (Norton v. Berlin Iron Bridge Co., 51 N. J. Law, 442.)

90. Proceedings when summons not served. In case the sheriff or other officer shall return a summons issued against any corporation of this state, "not served" or "not summoned," and an affidavit shall be made to the satisfaction of the court that process cannot be served upon it, the court shall make an order directing the defendant to cause its appearance

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REMEDIES AGAINST OFFICERS AND STOCKHOlders.

§ 91-92 to be entered to the action, on a day to be specified in the order, a copy of which order shall be inserted in one of the newspapers published in this state, for at least three weeks, once in each week, and a copy thereof shall also be posted in three public places in this state, as shall be ordered by the court, for at least three weeks, and if the defendant shall not appear within the time limited by the order, or within such further time as the court shall limit, then, on proof of the publication and posting of the order, the court shall order the clerk to enter appearance for the defendant, and thereupon the action. shall proceed as if the defendant had entered its appearance to

the action.

Act of 1875, § 90.

91. No corporation against which an order for publication shall be made, as aforesaid, shall grant, bargain, sell, alien or convey any lands, tenements or real estate in this state (in case the said summons issued out of the supreme court), or in the county in which the said summons shall have been issued (in case the said summons issued out of the circuit court or the court of common pleas), of which it shall be seized or entitled to at the time of making such order, until the plaintiff in the action shall be satisfied his legal demand, or until judgment shall be entered for the defendants; and the said action shall be and remain a lien on such lands, tenements and real estate, from the time of entering the said order for publication in the minutes of the court, and the said lands, tenements and real estate shall and may be sold on execution, as if no conveyance had been made by the said corporation.

Act of 1875, § 91.

IX.-Remedies Against Officers and Stockholders.

Action for liability imposed by act; remedy in chancery. -When the officers, directors or stockholders of any corporation shall be liable to pay the debts of the corporation, or any part thereof, any person to whom they are liable may have an action against any one or more of them; and the declaration. shall state the claim against the corporation, and the ground on which the plaintiff expects to charge the defendants personally;

To face p. 103, Dill on New Jersey Corporations, 3d cloth and 4th paper edition.

Act of 1902.

FOREIGN CORPORATIONS MAY Acquire, Own and Dispose of REAL ESTATE In New Jersey.

1. It shall be lawful for any foreign corporation whatsoever to purchase and convey, to lease, hold, occupy and use for the purposes of such corporation such real estate in this state as may be devised or conveyed to it. (Chap. 38, Laws of 1902, approved March 26, 1902, repealing inconsistent acts and taking effect immediately.)