3 Robbins. Groel v. United Electric Company of New Jersey. may be decreed to be paid to the United Electric Company, and that the amount of damage suffered by the United Electric Company, by reason of the fraudulent acts and transactions of the United Gas Improvement Company, may be ascertained and may be decreed to be paid to the United Electric Company, and for further relief. To this bill the defendant the United Gas Improvement Company filed the following plea: "The defendant the United Gas Improvement Company, appearing by its officers for the sole purpose of objecting to the jurisdiction of this honorable court over this defendant in this action, and for no other purpose, and by protestation, not confessing or acknowledging the matters and things in and by the said bill of complaint of the said Adam H. Groel, set forth in such manner and form as the same are thereby and therein set forth and alleged for plea to the jurisdiction of this honorable court in the premises, says that the said The United Gas Improvement Company is not a resident or citizen of the State of New Jersey, or existing as a body corporate under and by virtue of its laws; that it has no office, agent or agency, or place of business within the State of New Jersey, nor has it had any office, agent or agency or place of business therein since the first day of November, eighteen hundred and ninetynine; that it is a body corporate existing under and by virtue of the laws of the State of Pennsylvania; that on the tenth day of July, eighteen hundred and ninety-four, it filed in the department of state of the State of New Jersey a copy of its charter or certificate of organization, duly attested by its vice-president and secretary under its corporate seal, and a statement of the same officers, also under its corporate seal, setting forth the total amount of capital stock it was authorized to issue, the character of the business in which it was engaged and in which it proposed to engage within this state, and naming R. W. Elliott, then a citizen of this state, as its agent upon whom legal process against it might be served, the said R. W. Elliott having an office or place of business, at that time, at No. 109 Montgomery street, Jersey City, which was also the office and principal place of business within this state of said The United Gas Improvement Company, a copy of which statement is hereto annexed and made a part hereof as Exhibit A; that upon the filing of said papers the secretary of state of the State of New Jersey issued to said The United Gas Improvement Company a certificate that it had complied with all the requirements of law to authorize it to transact business in this state, and that the business of the United Gas Improvement Company to be carried on within this state was such as might lawfully be carried on by corporations incorporated under the laws of New Jersey for similar business; that the United Gas Improvement Company continued its business of manufacturing and selling gas in the State of New Jersey, at its principal office or place of business in New Jersey, at No. 109 Montgomery street, Jersey City, until November 1st, Groel v. United Electric Company of New Jersey. 69 Eq. 1899, at which time it discontinued the same and has not since resumed it; that it then discharged all obligations of any and every kind whatsoever arising out of or connected with said business, closed its said office or place of business and discharged said R. W. Elliott from its said agency and employ, and since that date has had no office, agent or place of business in the State of New Jersey, nor has it conducted business therein; that on the ninth day of September, nineteen hundred and three, the board of directors of the United Gas Improvement Company, at a regular meeting of said board held at its principal office in the city of Philadelphia, at which there was a quorum present, passed a resolution formally revoking, in writing, the designation of said R. W. Elliott as its agent, and directing that a certified copy of said resolution be forthwith served upon said R. W. Elliott, and that another copy thereof, under the seal of the corporation, duly certified and attested, be forthwith filed in the office of the secretary of state of the State of New Jersey, a copy of which resolution is hereto annexed and made a part hereof as Exhibit B; that a copy of said resolution was forthwith sent by registered letter to the said R. W. Elliott, directed to him at his post-office address in East Orange, in the State of New Jersey, and was received and receipted for by him on the eleventh day of September, nineteen hundred and three, and that another copy thereof, under the seal of the said The United Gas Improvement Company, duly certified by Thomas Dolon, president of said company, and attested by James Ball, assistant secretary thereof, was on said tenth day of September, nineteen hundred and three, delivered to Honorable Samuel D. Dickinson, secretary of state of the State of New Jersey, at his office in the state house in the city of Trenton, in said State of New Jersey, and was thereupon placed by him with the other files of papers of said The United Gas Improvement Company in the office of the secretary of state of the State of New Jersey, and an entry made by him in red ink on his docket of foreign corporations, opposite the name of the United Gas Improvement Company and the name of R. W. Elliott as agent thereof, to the effect that the United Gas Improvement Company had withdrawn from the state; that jurisdiction has been sought to be obtained over the United Gas Improvement Company in this case by the issuance of a writ of subpœna ad respondendum out of and under the seal of this honorable court, bearing date October 15th, 1903, directed to 'United Gas Improvement Company, a corporation,' and the service of the same by the sheriff of the county of Essex upon the said Robert W. Elliott at his place of residence in East Orange, in the county of Essex, on the sixteenth day of October, nineteen hundred and three, and by a return thereof by said sheriff of the county of Essex, as follows: 'Served the within writ upon the within named defendant company by delivering a true copy thereof personally to Robert W. Elliott, statutory agent of the said company, October 16th, 1903. William C. Nicoll, sheriff, by Fred. Weimer, special deputy;' that no process or other legal notice has been otherwise served upon the United Gas Improvement Company or upon any persons authorized on its behalf in the matter of this suit; that at the time of said service said Robert W. Elliott was not statutory agent or other representative or agent of the United Gas Improvement Company in the State of New Jersey or elsewhere, and had no connection 3 Robbins. Groel v. United Electric Company of New Jersey. whatever as officer, director or otherwise with the United Gas Improvement Company, and that no decree can be entered in this suit which is enforceable against this defendant under the constitution and laws of the United States or under the constitution and laws of the State of New Jersey. "By reason thereof this defendant humbly submits that this honorable court has not now, and never had, and cannot have, jurisdiction over it. "All which matters and things this defendant doth aver to be true, and pleads the same in bar to the said complainant's bill and to the jurisdiction of this honorable court in the premises, and prays the judgment of this honorable court whether it should be compelled to make any further or other answer to said bill, and prays to be hence dismissed, with its costs and charges in this behalf sustained." Mr. Edwin G. Adams (with whom was Mr. Nathan Bijur, of the New York bar), for the complainant. Mr. Robert H. McCarter and Mr. Richard V. Lindabury, for the United Gas Improvement Company. GARRISON, V. C. The complainant raises an initial objection to the plea which requires consideration before the substance of the plea is dealt with. It will be observed that the defendant recites in the commencement of its plea that it appears solely for the purpose of questioning the jurisdiction of the court and for no other purpose. The complainant insists that since the court of chancery of New Jersey has undoubted jurisdiction of the subject-matter, and since one of the defendants, to wit, the United Electric Company, is within reach of the process of the court, and the sole ground on which the pleading defendant disputes the jurisdiction of the court is that it has not been properly served with process, it is not proper practice to raise such an issue by a plea to the jurisdiction of the court reciting a special appearance. It is suggested that the proper practice is to move to set aside the service of the process after having obtained leave of the court to enter a conditional appearance, the condition of the appearance being that if the court overrules the motion the defendant will submit itself generally. Groel v. United Electric Company of New Jersey. 69 Eq. It is pointed out that if the practice adopted in this case is permitted a defendant may, by appearing specially, invoke the jurisdiction of our court without being in any way bound by its decision. A defendant permitted to thus come into court specially may raise an issue and be heard upon it, and, if the decision be in his favor, take advantage of it, without, on the other hand, being at all prejudiced if the decision be against him. The supreme court of the United States has held that if a defendant is permitted to appear specially to dispute the jurisdiction of the court over his person, he may go on and litigate upon the merits without being held to have appeared generally in the suit. Harkness v. Hyde, 98 U. S. 476; 25 L. Ed. 237. But it has also held that if he appears in the face of a warning or condition that his appearance will be construed to be a general appearance, he will be bound thereby. York v. Texas. 137 U. S. 15; 34 L. Ed. 604; Kauffman v. Wooters, 138 U. S. 285; 34 L. Ed. 962. It will therefore be perceived that this matter is of much graver concern than a mere question of practice. The pertinent inquiry being whether the status of the defendant in the suit should not, for his protection as well as that of the other party and the court, be fixed when the defendant first takes part in the proceeding? There may be exact justice in permitting a defendant to appear specially to litigate the question as to whether he has been brought within the jurisdiction of the court, and in permitting him to claim protection against the inference that his appearance for that purpose was a general appearance conferring jurisdiction. But is it not equally just to require him to elect whether to stand on that position or to abandon it? It seems reasonable to hold that if he disputes the right of the court to enforce any jurisdiction over him, he may come in specially and litigate that question, but that when that question is determined, if the decision be against him, he must eleet either to stand on his asserted immunity from jurisdiction or abandon it and litigate on the merits. He must not attempt to do both and thus be half in and half out of court. Eddy v. 3 Robbins. Groel v. United Electric Company of New Jersey. Lafayette, 49 Fed. Rep. 807; Crawford v. Foster, 84 Fed. Rep. 939; Tower v. Moore, 52 Mo. 118; Davies v. Andre, 24 Q. B. D. 606. The complainant sought to have this plea stricken out or taken from the files-if that be, as I apprehend it is, the proper practice upon the ground that the defendant had no right to insert in the plea the special appearance with which it com mences. This motion was made under Chancery rule 213, and was denied. Groel v. United Electric Co. of New Jersey, 68 N. J. Eq. 249 (Vice-Chancellor Emery, 1904). The complainant upon the present hearing renews its objection to this part of the plea, and claims that the court, upon a hearing upon bill and plea, will adjudge the plea insufficient and strike it out as well for matters of form as for matters of substance. From what is said by the court in the cases of Davison's Executors v. Johnson, 16 N. J. Eq. (1 C. E. Gr.) 112 (Chancellor Green, 1863), and Corlies v. Corlies' Executors, 23 N. J. Eq. (8 C. E. Gr.) 197 (Chancellor Zabriskie, 1872), there is some warrant for this contention. From such investigation as I have made of the practice in the English court of chancery, which is applicable to our practice, excepting where changed, I incline to the opinion that a motion. based upon a conditional appearance, and not a plea to the jurisdiction of the court, was the settled practice in such a case as the present. A plea to the jurisdiction commenced, as did all other pleas, by what we would construe as a general appearance, because it asserted that which showed lack of jurisdiction of the subjectmatter, and this, of course, could not be cured by appearance. Daniells points out (as does Story) that in equity pleas to the jurisdiction simply assert that the court of chancery is not the proper court to take cognizance of the rights sought to be enforced by the complainant, and that pleas to the person assert that the complainant is incapacitated to sue or that the defendant is not the person who ought to be sued. 1 Dan. Ch. Pl. & |