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ions being to insure the giving of due notice to the corporation, that idea is given prominence in all the decisions interpreting them. Consequently the general rule, as far as there can be said to be any, in such cases, is that if the person served sustain sufficient character and rank to render it reasonably certain that the corporation would be apprised of the service, the requirement of the statute is answered.' As to particular rulings, it is only possible here to briefly notice a few instances. Under the New York code, authorizing service in certain circumstances on the "cashier," service on one who receives money for goods sold by the company in the State has been held sufficient. In an action against a non-resident co-operative assessment insurance organization, not authorized to do business in the State, service on the agent who received payment of the assessment and gave the company's receipts therefor, was held sufficient. And one who was furnished with stationery and books for the transaction of a foreign insurance company's business, and to whom the manager referred others wanting policies, will be held to be the agent, notwithstanding he had given no bond. A "managing agent" is one who is vested with the general conduct and control at a particular place of the company's business."

1 Taylor v. Granite State Provident Assn., 20 N. Y. Supp. 135; Barrett v. Telephone Co., 10 N. Y. Supp. 138; Palmer v. Pennsylvania Co., 35 Hun, 369.

2 McCulloh v. Paillard, etc. W. Co., 14 N. Y. Supp. 491.

3 Voorheis v. People's Mut. Ben. Soc., 86 Mich. 31, 48 N. W. Rep. 1087. 4 Pacific Mut. L. Ins. Co. v. Williams, 79 Tex. 633, 15 S. W. Rep. 478. See also Southern Ins. Co. v. Wolverton Hardware Co. (Tex.), 19 S. W. Rep. 615; Southwestern Mut. Ben. Assn. v. Swenson (Kans.), 30 Pac. Rep. 405.

5 Porter v. Chicago, etc. R. Co., 1 Neb. 14. See Carr v. Commercial Bank, 19 Wis. 272; Chicago, etc. R. Co. v. Manning, 23 Neb. 552, 37 N.

772

§ 216. Same-More Illustrations.-The fact that the time named in the contract of agency between the defendant company and its agent had expired prior to the service of the notice, is immaterial, provided the agency in fact continued.' Service on one who is the agent in the very transaction out of which the suit arises is sufficient, under the statutes of New York, requiring service in the absence of the principal officers of the company on the "cashier, director or managing agent.' Service on one who is advertised as the agent of the defendant railroad company and who is in the employ of a connecting line, the majority of the stock in which is owned by the defendant, has been held sufficient. And so has service on a section foreman on a railroad, as a "local superintendent of repairs." A conductor is a "special agent of a railroad company." And service of a subagent of a general agent for the State of a foreign manufacturing company, has even been held sufficient."

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W. Rep. 462; Bank of Commerce v. Rutland, etc. R. Co., 10 How. Pr. 1; Bain v. Globe Ins. Co., 9 How. Pr. 448; Societe Fonciere v. Milliken, 135 U. S. 304; Norton v. Berlin Iron Bridge Co., 51 N. J. L. 442, 17 Atl. Rep. 1079; Palmer v. Pennsylvania Co., 35 Hun, 369; Tuchband v. Chicago, etc. R. Co., 115 N. Y. 437, 22 N. E. Rep. 360, 17 Civ. Proc. Rep. 413, affirming 5 N. Y. Supp. 493, 16 Civ. Proc. Rep. 241; Hat-sweat Mfg. Co. v. Davis S. M. Co., 31 Fed. Rep. 294; Burgess v. C. Aultman & Co., 80 Wis. 292, 50 N. W. Rep. 175. Compare American Express Co. v. Johnson, 17 Oh. St. 641.

1 Gross v. Nichols, Shephard & Co., 72 Iowa, 239, 33 N. W. Rep. 653; Brunson v. Nichols, Shepard & Co., 72 Iowa, 763, 34 N. W. Rep. 289.

2 Estes v. Belford, 22 Fed. Rep. 275, 8 Eng. & Am. Corp. Cas. 153, 23 Blatchf. 1. Compare Moch v. Virginia F. & M. Ins. Co., 10 Fed. Rep. 696.

3 Norton v. Atchison, etc. R. Co. (Cal.), 30 Pac. Rep. 585.

4 St Louis, etc. R. Co. v. De Ford, 38 Kans. 299.

New Albany, etc. R. Co. v. Grooms, 9 Ind. 243; New Albany, etc.

R. Co. v. Tilton, 12 Ind. 3.

Burgess v. C. Aultman & Co., 80 Wis. 292, 50 N. W. Rep. 175.

§ 217. Instances of Insufficient Service.--A "managing agent" means one who is invested with general powers involving the exercise of judgment and discretion, as opposed to an ordinary agent, who acts in an inferior capacity, under the direction and control of superior authority, both in regard to the extent of his work and the manner of executing it.' A baggage-master is not a "managing agent, nor is the captain of a steamboat, owned by defendant company. Where a foreign railroad company has its roads exclusively in other States, a passenger agent, whose sole duty is to solicit travel over the defendant company's route, is not an "agent," within the meaning of the statute, although he may have been employed to effect a compromise of plaintiff's claim."

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§ 218. Same-Further Illustrations.-The agency must be of a permanent nature, and something more than a mere transient employment. An attorney of a foreign company, who has claims to collect for them, is not a local agent upon whom process can be served. And where the foreign company was represented in the State by a general agent and a local board of directors, service on a local agent, of limited authority, in a little country town, is insufficient. Where the "managing agent" had resigned before the writ was served on him, the court held that no jurisdiction was acquired by the service.'

Reddington v. Mariposa L. & M. Co., 19 Hun, 405.

2 Flynn v. Hudson Riv. R. Co., 6 How. Pr. 308.

3 Upper Miss. Transp. Co. v. Whittaker, 16 Wis. 220.

4 Maxwell v. Atchison, etc. R. Co., 34 Fed. Rep. 286.

5 Moore v. Freeman's Nat. Bank, 92 N. C. 590.

6 Weight v. Liverpool, etc. Ins. Co., 30 La. An. 1186.

American Exp. Co. v. Johnson, 17 Oh. St. 64.

But see

7 Sturgis v. Crescent Jute Mfg. Co., 10 N. Y. Supp. 470. Compare Gross v. Nichols, Shepard & Co., 72 Iowa, 239, 33 N. W. Rep. 653.

Under a statute requiring foreign insurance companies to appoint "some person" to receive service of process, a return showing service on "one of the agents of the company" was held to be insufficient.' The relation of principal and agent must actually exist between the parties. Where a non-resident corporation sold its goods only to certain persons in each State, whom it styled "distributing agents," under an agreement whereby the latter was to buy exclusively from it, and to sell at trade prices prescribed by it, it was held that service on such an agent gave no jurisdiction of the company."

§ 219. Character of Officer served a Question of Fact. Whether the individual served with process is a "resident agent," within the statute, is a question of fact for the trial court."

§ 220. Return of Process.-A return, which discloses service upon the "State agent" of the defendant corporation, has been held to sufficiently describe the agent appointed to receive service of process, under the statute. Under the provision of the New York statute that service may be upon a "managing agent," if there is no principal officer within the State, and no agent designated to receive service of process, a return of service on a managing agent is defective and does not give jurisdiction, which fails to show an absence of such officers and agents.

1 Gates v. Tusten, 89 Mo. 13.

2 Gottschalk Co. v. Distilling and Cattle Feeding Co., 50 Fed. Rep. 681. 3 Hester v. Rasin Fertilizer Co., 33 S. C. 609, 12 S. E. Rep. 563. See also Voorheis v. People's Mut. Ben. Soc., 86 Mich. 31, 48 N.W. Rep. 1087. 1 Stone v. Travelers' Ins. Co., 78 Mo. 655.

5 Code Civ. Proc. N. Y., § 432.

Glines v. Order of Iron Hall, 20 N. Y. Supp. 275.

§ 221. Service.-The plaintiff is not required to establish the particular facts upon which such jurisdiction rests by proof before or at the time of the service of the summons. The presumption is in favor of the jurisdiction, and the defendant must establish, by affirmative proof, the want of facts which are essential to it, on his motion to set aside the service.' Nor, where service of process "can be made upon a foreign corporation only, either when it has property within the State, or the cause of action exists in favor of a resident of the State," is it essential that one of these jurisdictional facts should be alleged in the petition, and the failure so to do will not render it demurrable."

Presumption in Favor of the Validity of

§ 222. Remedy in Such Cases-Plea to Jurisdiction.-Where the service has been upon the officer of a foreign corporation in accordance with the provisions of the statute, it has been held that the question of fact as to whether he was within the jurisdiction, in an individual capacity or on business for the company, must be raised by a plea to the jurisdiction, and cannot be considered upon a motion to quash. And so, where the statute gives jurisdiction of a suit upon a cause of action arising within the State, if the declaration does not on its face negative the existence of such cause of action, the issue as to jurisdiction must be raised by plea and not by motion."

1 Bates v. New Orleans, etc. R. Co., 4 Abb. Pr. 72, 13 How. Pr. 516. 2 Rev. St. Wis., § 2637, subd. 11.

3 Friezen v. Allemania Fire Ins. Co., 30 Fed. Rep. 349.

♦ Benwood Iron Wks. v. Hutchinson, 101 Pa. St. 359; Camden Rolling Mill Co. v. Swede Iron Co., 32 N. J. L. 15; Newell v. Great Westtern Ry. Co., 19 Mich. 336.

Maxwell v. Speed, 60 Mich. 36, 26 N. W. Rep. 824.

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