$266. Implied consent by accepting conditional admission. The consent to be sued may be implied from the conduct of the foreign corporation. If the law of the State provides that a foreign corporation doing business in the State shall be suable in its courts after process served in a prescribed manner, this is to be regarded as an expression of the will of the State that a foreign corporation shall do business in the State only on condition it consents to be sued. If then, the foreign corporation does business in the State, its conduct implies a consent to the condition upon which the State offered it permission to do business. Since consent is given by acts, not by mere thoughts or words, this implied consent is as real as consent expressed by spoken or written words. Not the words themselves, but the act of speaking or writing them, is the legal consent; and the act of doing business in acceptance of a conditional offer is equally an act of consent to the terms of the offer thus accepted. A foreign corporation which does business in a State after the passage of a statute providing for suit against such a corporation may therefore be sued in the way provided for in the statute.22

So where a foreign railroad corporation is admitted to do business in the State under a special act which provides that it may be served just as a domestic corporation, such service is good when the corporation has accepted the act.23

The condition that a foreign corporation, if it does business in the State, shall consent to be sued need not be expressed in the statute. It may as well be found from an interpretation of all the legislation of the State as from the express language of any particular statute.24

22 Smith v. Empire S. I. M. & D. Co., 127 Fed. 462; Western U. T. Co. v. Pleasants, 46 Ala. 641; City F. I. Co. v. Carrugi, 41 Ga. 660; Alabama G. S. R. R. v. Fulghum, 87 Ga. 263, 13 S. E. 649; Milwaukee T. Co. v. Germania Ins. Co., 106 La. 669, 31 So. 298; National C. M. Co. v. Brandenburgh, 40 N. J. L. 112; Walker v. Continental Ins. Co., 2 Utah, 331. See ante, § 74.

23 Quade v. N. Y. N. H. & H. R. R., 39 N. Y. St. Rep. 157, 14 N. Y. St. 875. 24 Barrow S. S. Co. v. Kane, 170 U. S. 100, 42 L. ed. 964.

§ 267. Failure to comply with the statute and appoint agent. If the foreign corporation does business in the State without appointing an agent to receive service of process, how may it be reached? The better view would seem to be, that such a statute really includes two things; the imposition of a condition that the foreign corporation, if it comes in the State to do business, shall consent to be sued, and a provision as to the method of suit. If the corporation then comes in to do business it has impliedly consented to the jurisdiction of the courts. If notwithstanding this consent it has not designated an agent to receive service of process, it would be permissible to serve process in accordance with the general law regulating process against corporations. On this theory it is held that if the foreign corporation does business without designating its agent to receive service, process may be served, in accordance with the local practice, on any resident agent.25

If the State statute requires the designation of a State official as agent of the company to receive service, and the corporation though it does business within the State fails to designate such official, may it nevertheless be sued by service on the official? It has been so held, on the ground that the company is estopped to deny that it has done its legal duty and designated the official.26 But this decision appears to be unsound for two reasons: first, the jurisdiction depends upon actual consent, and consent assumed on the ground of estoppel must always be fictitious; secondly, there is no provision in the local law of procedure for service on the State officer except after the filing of consent. On this ground it has been held, more properly, that service on the State official

25 Moch v. Virginia F. & M. Ins. Co., 10 Fed. 696; Funk v. Anglo-Amer. Ins. Co., 27 Fed. 336; American G. M. Co. v. Giant Powder Co., 1 Alaska, 664; Thomas v. Placerville G. Q. M. Co., 65 Cal. 600; St. Louis & S. F. Ry. v. De Ford, 38 Kan. 299; Hagerman v. Empire Slate Co., 97 Pa. 534.

26 Ehrman v. Ins. Co., 1 McCr. 123, 1 Fed. 471; Mason's F. A. Assoc. v. Riley, 60 Ark. 578, 31 S. W. 148.

does not bind the company.27 Under these circumstances the preferable method would be (as generally) to permit service on the corporation in accordance with the general law as to service on ordinary corporations.

§ 268. Service on the designated agent only.

If a foreign corporation has designated an agent on whom process may be served, in accordance with the statute, it has presumably performed the required condition, and will not be taken to have consented to the service of process in any other manner. It follows that when an agent has been designated by the corporation, service on any other person, though he also may be an agent, will not be sufficient.28

But it is of course possible for a State to require both the appointment of an agent for the special purpose of suit, and also submission to the general statute regulating service of process; and in that case, therefore, the foreign corporation may be sued by either method.29 And so when a State statute has required the designation of an agent to receive process, and a subsequent statute, not exclusive in its terms, requires the appointment of the State commissioner of insurance, service on the agent designated under the earlier statute will confer jurisdiction.30

The designated agent may be served with process wherever

27 Rothrock v. Dwelling-House Ins. Co., 161 Mass. 423, 37 N. E. 206, 42 A. S. R. 418, 23 L. R. A. 863.

28 So. Bldg. & Loan Ass. v. Hallum, 59 Ark. 583, 28 S. W. 420; Union G. & T. Co. v. Craddock, 59 Ark. 593, 28 S. W. 424; Venner v. Denver Union Water Co., 15 Colo. App. 495, 63 Pac. 1061; Oland v. Agricultural Ins. Co., 69 Md. 248, 14 Atl. 669; Thayer v. Tyler, 10 Gray, (Mass.) 164; Baile v. Equitable F. I. Co., 68 Mo. 617; Liblong v. Kansas F. I. Co., 82 Pa. 413.

29 Henrietta M. & M. Co. v. Johnson, 173 U. S. 221, 43 L. ed. 268; Mutual R. F. L. Assoc. v. Cleveland Woolen Mills, 82 Fed. 508; Lesser Cotton Co. v. Yates, 69 Ark. 396, 63 S. W. 997; Quade v. New York, N. H. & H. R. R., 14 N. Y. S. 875, 39 N. Y. St. Rep. 157; Howard v. Prudential Ins. Co., 1 App. Div. 135, 37 N. Y. S. 832.

30 Green v. Equit. Mut. Life & Endow. Ass., 105 Iowa, 628, 75 N. W. 635.

he may be found in the State; it is not necessary to serve him at the designated place of business.31

§ 269. Statute must be exactly followed.

Since jurisdiction over a foreign corporation depends upon statutes, it follows naturally that the statutory requirements for service must be followed exactly.32 Thus if the State requires service on a managing or business agent, a return on a subpœna, indorsed that it had been served on H. "agent for" the corporation is bad. 33 And when statute allows service "by delivering a copy to the secretary of state," service on the deputy secretary when the secretary was out of the State was insufficient.34 And so as to service on deputy insurance commissioner. 35 And if the statute requires personal service on the State superintendent of insurance, service on him by mail is bad.36 And if the statute provides for service on the State auditor in suits between residents and a foreign corporation, jurisdiction is not obtained by service on him in an action by the agent of the corporation against the corporation.37

§ 270. Service on agent temporarily in the State.

An agent or officer of the corporation temporarily within the State on his own business, not on business of the corporation, whether he be the president or other officer, or an inferior agent, is not a person who may be served with process

31 Littlejohn v. Southern Ry., 45 S. C. 96, 22 S. E. 761.

32 Farmer v. Nat. Life. Ass., 50 Fed. 829; New River Mineral Co. v. Seeley, 120 Fed. 193; Sobrio v. Manhattan Life Ins. Co., 72 Fed. 566; So. Bldg. & Loan Ass. v. Hallum, 59 Ark. 583, 28 S. W. 420; St. Paul German Ins. Co. v. Craddock, 59 Ark. 593, 28 S. W. 424; Venner v. Denver Union Water Co., 15 Colo. App. 495, 63 Pac. 1061; Wagner v. Shank, 59 Md. 313; Loukey v. Keyes Silver Mining Co., 21 Nev. 312, 31 Pac. 57; Coolidge v. American Realty Co., 92 App. Div. 622, 86 N. Y. S. 318.

33 Sobrio v. Manhattan Life Ins. Co., 72 Fed. 566.

34 Loukey v. Keyes Silver Mining Co., 21 Nev. 312, 31 Pac. 57.

35 Old Wayne Mut. Life Ass. v. Flynn, (Ind. App.) 66 N. E. 57.

36 Farmers' Nat. Life Ass, 59 Fed. 29.

37 Byers v. Union Central Life Ins. Co., 17 Ind. App. 101, 46 N. E. 475.

so as to bind the corporation.38 In the words of the Supreme Court of Michigan, in a case in which it had been attempted to get jurisdiction over a Canada corporation by service on its treasurer, temporarily in Michigan: "The corporate entity could by no possibility enter the State, and it could do nothing more in that direction than to cause itself to be represented here by its officers or agents. Such representation would, however, necessarily imply something more than the mere presence here of a person possessing, when in Canada, the relation to the company of an officer or agent. To involve the representation of the company here, the supposed representative would have to hold or enjoy in this State an actual present official or representative status. He would be required to be here as an agent or officer of the corporation, and not as an isolated individual. If he should drop the official or representative character at the frontier, if he should bring that character no further than the territorial boundary of the government to whose laws the corporate body itself, and consequently the official positions of its officers also, would be constantly indebted for existence, it could not, with propriety, be maintained that he continued to possess such character by force of our statute. Admitting, therefore, for the purpose of this suit, that in given cases the foreign corporation would be bound by service on its treasurer in Michigan, this could

38 St. Clair v. Cox, 106 U. S. 350, 27 L. ed. 222; Fitzgerald C. Co. v. Fitzgerald, 137 U. S. 98, 34 L. ed. 608; Carpenter v. Air Brake Co., 32 Fed. 434; Clews v. Iron Co., 44 Fed. 31; Reifsnider v. American I. P. Co., 45 Fed. 433; Fidelity T. & S. V. Co. v. Mobile St. Ry., 53 Fed. 850; United States Graphite Co. v. Pacific Graphite Co., 68 Fed. 442; Mecke v. Valleytown Mineral Co., 93 Fed. 697; Eirich v. Donnelly Contracting Co., 104 Fed. 1; Reilly v. Philadelphia & R. Ry., 109 Fed. 349; Conley v. Mathieson Alkali Works, 110 Fed. 730; Scott v. Stockholders Oil Co., 122 Fed. 835; Fox v. Mining Co., 108 Cal. 369, 41 Pac. 308; Midland P. Ry. v. McDermid, 91 Ill. 170; Newell v. Great Western Ry., 19 Mich. 336; State v. District Court, 26 Minn. 233; Latimer v. Union Pac. Ry., 43 Mo. 105, 97 A, D. 378; Moulin v. Ins. Co., 24 N. J. L. 222; Aldrich v. Anchor C. & D. Co., 24 Ore. 32, 32 Pac. 756, 41 A. S. R. 831; Phillips v. Burlington Library Co., 141 Pa. 462, 21 Atl. 640, 23 A. S. R. 304; Carstens & Earles v. Leidigh & H. L. Co., 18 Wash. 450, 51 Pac. 1051, 63 A. S. R. 906, 39 L. R. A. 548.