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Coal Co. v. Nat'l State Bank of Camden, 55 N. J. Eq., 800; Pattberg v. Pattberg & Bros., 55 N. J. Eq., 604; Boyce v. Continental Wire Co., 125 Fed. Rep., 740; In re Urban & Suburban Realty Title Co., 132 Fed. Rep., 140; Conklin v. U. S. Shipbuilding Co., 136 Fed. Rep., 1006; Shinn v. Kummerle, 72 N. J. Eq., 828; Cogan v. Conover Mfg. Co., 659 N. J. Eq., 809, and Lembeck v. Jarvis Terminal Cold Storage Co., 70 N. J. Eq., 757.

"Creditors shall be paid proportionally" is construed in Consol. Coal Co. v. Nat'l State Bank of Camden, supra.

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; s. c., 42 Id., 490. 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. Ibid.

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.

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 (Revision of 1903). D., L. & W. R. R. Co. v. Ditton, 36 N. J. Law, 361; Wheeler & Wilson Mfg. Co. v. Carty, 53 N. J. Law, 336; P. L. 1903, p. 251; amended P. L. 1904, p. 72; P. L. 1906, p. 47.

Section 87 prescribes the manner in which a summons may be served. As to subsequent process the principle is, that service 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 corporation. See Section 87b. 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; Laufman & Co. v. Hope Mfg. Co., 54 N. J. Law, 70.

There is nothing in this section to prohibit the voluntary appearance of a corporation. Beebe v. George H. Beebe Co., 64 N. J. Law, 497.

Substituted service may be used to bring in foreign defendants. Sohege v. Singer Mfg. Co., 68 Atl. Rep., 64.

In the case of a domestic corporation the implication is that the appointment of a registered agent shall be made or renewed annually; there is no presumption that such agency continues indefinitely. Lenhart & Hoffman v. American School Furniture Co., 32 N. J. L. J., 49, February, 1909.

See Penn. R. R. Co. v. Kreitzman, 57 N. J. Law, 60; Saunders v. Adams Ex. Co., 71 N. J. Law, 270; aff'd Id., 520; Chambers v. Dwyer, 41 N. J. Law, 93.

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

*Arbitrary number; section inserted here merely for convenience of reference.

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 1874)," $106. See Gen. Statutes, p. 2551.)

By Chap. 226, Laws of 1903, corporate existence is admitted in judicial proceedings unless specifically denied. See Section 137.

87b.* Service upon an agent.

In any suit or proceeding heretofore or hereafter begun in the court of chancery against a corporation of this State, process of subpoena or other writ, notice, orders and papers of any nature whatsoever in such suit or proceedings served upon the president, vice president, a director or the designated agent of the corporation or other officer thereof, shall be good and effective service upon the corporation.

(Supplement to "An Act respecting the Court of Chancery (Revision of 1902),” approved April 11, 1907; P. L. 1907, p. 76.)

Service of subpoena ad respondendum upon a domestic corporation defendant in a foreclosure suit by delivering the same at the registered office of the company in the state to the vice-president, also a director, is service upon the corporation. Martin v. Atlas Estate Co., 72 N. J. Eq., 416.

After general counsel for a corporation announced to the attorney for the plaintiff that a certain agent was authorized to accept service, and service is thereafter made upon such agent, it is too late for the company to question the sufficiency of the service. Taylor Provision Co. v. Adams Express Co., 71 N. J. Law, 523.

87c.* Service of summons of district court.

If the defendant be a domestic corporation, the summons shall be served on the president, or head officer, or agent in charge of its principal office, or any

*Arbitrary number; section inserted here merely for convenience of reference.

employee or clerk employed in any of its offices in the county, or left at his or her dwelling-house or usual place of abode, at least five days before its return. If the defendant be a foreign corporation, the summons shall be served upon any officer, director, agent or clerk, or engineer of such corporation, either personally or by leaving a copy thereof at his dwellinghouse or usual place of abode in such county, or by leaving a copy at the office, depot or usual place of business of such foreign corporation in such county, at least five days before its return.

("An act concerning district courts,' $46, as amended by Chap. 116, Laws of 1908, approved April 8, 1908; P. L. 1908, p. 181.) P. L. 1877, p. 234, §23; P. L. 1898, p. 658, §46.

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 corporation; provided, that in case there is no officer, director, agent, clerk or engineer of said corporation residing in this state, nor any office, depot or usual place of business in this state, process may be served upon any motorman, conductor or servant of said corporation while in the discharge of his duties.

(As amended by Chap. 113, Laws of 1908; P. L. 1908, p. 176.) 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 thereby 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 business. Moulin v. Insurance Co., 24 N. J. Law, 222, 234; s. c., 25 Id., 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.

As to the acquiring of jurisdiction by the United States courts of a corporation not having an officer or a place of business in the state, see United States v. Standard Oil Co. of Indiana, 154 Fed. Rep., 728.

In Carroll v. N. Y., N. H. & H. R. R. Co., 65 N. J. Law, 124, 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; Camden Rolling Mill Co. v. Swede Iron Co., 32 N. J. Law, 15.

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. T. Law, 153; see also Puster v. Parker Mercantile Co., 64 N. J. Eq. 599; s. c., 70 Id., 771.

Service upon a person whose only connection with the corporation is contingent and when the connection has ceased, is not service upon an agent within the meaning of this section. Hass v. Security Ins. Co., 57 N. J. Law, 388.

Service upon a mere employee who has no general charge over corporate concerns and no connection with the business from which

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