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witness does not exempt him from liability to service in a suit arising out of his acts upon that same visit to the jurisdiction.25 Nor where the witness remains within the jurisdiction more time than is reasonably necessary for his attendance upon the case.26

A Federal court will not punish as a contempt the arrest of, or service of process by a State court upon, a foreign witness in attendance before it; 27 though it might perhaps upon habeas corpus discharge the witness from such arrest,28 or punish the party who molested the witness by a stay of proceedings in a case pending between him and the witness in the Federal court.29 A party to a suit in a Circuit Court of the United States was granted a protective writ to prevent, during his attendance upon the trial, his arrest as a lunatic under a previous order of a court of the State, when subsequently thereto his sanity had been adjudicated by a court of another State, where he then lived.30

If a person be fraudulently enticed within the district and then served with process by those who thus induced him to come, the service may be set aside.3 31 In one case, where a man was induced by a forged telegram to enter the jurisdiction of the court, the party who served him there was held to be presumptively connected with the fraud.32 The service of a notice that a deposition will be taken in another city, when such deposition is subsequently taken in pursuance thereof, cannot be considered a fraudulent device to entice the party within the jurisdiction.83

25 Iron Dyke Copper Min. Co. v. Iron Dyke R. Co., 132 Fed. 208.

26 Finch v. Gallagher, 25 Abb. N. C. (N. Y.) 404; 12 N. Y. Supp. 487; Marks v. La Societe, 19 N. Y. Supp. 470; Woodruff v. Austin, 37 N. Y. Supp. 22. But see Pope v. Negus, 3 N. Y. Supp. 796.

27 Ex parte Schulenburg, 25 Fed. 211.

28 Ex parte Hurst, 1 Wash. C. C. 1866. See Ex parte Schulenburg, 25 Fed. 211, 212.

29 Bridges v. Sheldon, 7 Fed. 17, Ex parte Schulenburg, 25 Fed. 211, 212.

42;

30 Chanler v. Sherman, C. C. A., 22 L.R.A. (N.S.) 992, 162 Fed. 19; Fitzgerald & M. C. Co. v. Fitzgerald, 137 U. S. 98, 105, 34 L. ed. 608, 611.

31 Blandin v. Ostrander, C. C. A., 239 Fed. 700; Union Sugar Refinery v. Mathiesson, 2 Cliff. 304; Steiger v. Boon, 4 Fed. 17; Blair v. Turtle, 5 Fed. 394; s. c., 23 Alb. L. J. 435; Baker v. Wales, 15 Abb. Pr. N. S. (N. Y.) 331.

32 Steiger v. Bonn, 4 Fed. 17. 33 Jaster v. Currie, 198 U. S. 144, 49 L. ed. 988.

It has been held that a party to a suit in a State court is not on his journey there exempt from service of process in another State.34

The privilege must be claimed promptly, or otherwise will be waived. It was waived by a delay of nearly four months and a half, during which plaintiff had entered judgment by default; 36 but a delay of three weeks was held not to operate as a waiver.37

A voluntary appearance waives the objection; 38 but, it has been held, that the objection may be raised by a plea in abatement; 39 even when united with a defense upon the merits.40 It has been held: that the execution of a bail bond is not a waiver. 41

A judgment is not void so that it can be attacked collaterally, where process was served upon a party while attending a trial.42 § 167a. Return and proof of service of process. If the marshal or his deputy make the service, his unverified return is sufficient. This may be contradicted, although there is a rem

34 Holyoke & S. H. F. I. Co. v. Ambden, 21 L.R.A. 319, 55 Fed. 593.

35 Matthews v. Puffer, 10 Fed. 606, 20 Blatchf. 233; Watson Town Nat. Bank v. Messenger, 66 Pa. Co. Ct. 609.

36 Sebring v. Streyker, 10 Misc. (N. Y.) 289, 30 N. Y. Supp. 1053. 37 Morrow v. U. H. Dudley & Co., 144 Fed. 441.

38 Anonymous, 9 N. J. L. J. 166. But see Larned v. Griffin, 12 Fed. 590; Stewart v. Howard, 15 Barbour (N. Y.) 26; infra, § 170.

39 Larned v. Griffin, 12 Fed. 590. 40 Larned v. Griffin, 12 Fed. 590; Christian v. Williams, 35 Mo. App. 297; O'Loughlin v. Bird, 128 Mass. 600.

41 Larned v. Griffin, 12 Fed. 590; Washburn v. Phelps, 24 Vt. 506; U. S. v. Edme, 9 S. & R. (Pa.) 147. 42 Jaster v. Currie, 198 U. S. 144, 49 L. ed. 988; Walker v. Collins, 59

Fed. 70. A number of authorities
are collected in an article by Mr.
Alexander H. Robbins, 65 Cent. L.
J. 105.

§ 167a. 1 Von Roy v. Blackman,
3 Woods, 98, 101; Phoenix Ins. Co.
v. Wulf, 1 Fed. 775; Equity Rule 16.
Where the defendant was named in
the bill as Jacob Kraig, a return
that the subpoena had been served
on Jacob King was held insufficient.
McClaskey v. Barr, 45 Fed. 151.
2 Mechanical Appliance
Co. V.
Castleman, 215 U. S. 437, 54 L. ed.
272; Peper Automobile Co. v. Am.
Motor Car Sales Co., See McClas-
key v. Barr, 45 Fed. 151; Park
Bros. & Co. v. Oil City Boiler Works,
204 Pa. St. 453, 54 Atl. 334. Contra,
Dicta in Von Roy v. Blackman, 3
Woods, 98, 100; Joseph v. New Al-
bany S. F. & R. M. Co., 53 Fed. 180;
U. S. Bank v. City of Kendall, 179
Fed. 914; U. S. v. McHie, 194 Fed.
894.

edy by an action against the officer for a false return.3 The marshal's return, that the corporation served was transacting business within the district, can be contradicted; so can be his return, that the person on whom the service was made was authorized to represent the defendant for that purpose, the return is not conclusive as against strangers to the writ.

It is insufficient in the case of service upon a corporation, unless it shows that the defendant was transacting business within the district, or that appears elsewhere in the record.7 The return should show that the person served was an agent or officer of the defendant which was transacting business within the district, and also it has been held the requirements of the State statutes regulating the subject.9

When it states that the person served was the agent of the defendant, it will be presumed that he represented the company within the State: 10 but a return of service upon a general agent, or superintendent 12 was held to be insufficient. The return should state where the service was made, if the defendant reside without the district,13 and probably in any

3 Von Roy v. Blackman, 3 Woods, 98, 100.

4 Peper Automobile Co. v. Am. Motor Car Sales Co., 180 Fed. 245. See St. Clair v. Cox, 106 U. S. 350, 359, 27 L. ed. 222, 226, infra, § 164. 5 Higham v. Iowa State Travelers' Ass'n, 183 Fed. 845.

6 U. S. v. McHie, 194 Fed. 894. 7 Earle v. Chesapeake & O. Ry. Co., 127 Fed. 235; Jackson v. Del. R. A. Co., 131 Fed. 134; Green v. Chicago, B. & Q. Ry. Co., 147 Fed. 767; Allen V. Yellowstone Park Transp. Co., 154 Fed. 504.

8 St. Clair v. Cox, 106 U. S. 350, 359, 27 L. ed. 222, 226; Swarts v. Christie Grain & Stock Co., 166 Fed. 338.

9 Amy v. Watertown, 130 U. S. 391, 9 Sup. Ct. 530, 32 L. ed. 946.

10 St. Clair v. Cox, 106 U. S. 350, 359, 27 L. ed. 222, 226. A marshal's return, which recited the delivery of

a true copy on the managing agent of a foreign corporation found in the county, that he was the only agent of the corporation therein, that it was a non-resident, and that none of its principal officers resided in the State, and that all of its offi-. cers, except its managing agent, were absent from the State, was held to be prima facie evidence of legal service. Chinn v. Foster-Milburn Co., 195 Fed. 158.

11 Swarts V. Christie Grain & Stock Co., 166 Fed. 338.

12 Boulthbee v. International Paper Co., C. C. A., First Circuit No. 1168. As to agency when two companies have the same name, see Darrow v. Postal Telegraph-Cable Co. of N. Y., 229 Fed. 314.

18 Allen v. Blunt, 1 Blatchf. 480, 487; Thayer v. Wales, 5 Fisher's Pat. Cas. 448.

event. If another than the marshal or his deputy serve the subpoena, proof must be made by the affidavit of the processserver.14 Where there had been personal service upon the defendant by a special deputy the fact that the return was in the name of such deputy instead of in the name of the marshal was held an irregularity which did not avoid the judgment when attacked in a collateral proceeding.15 When the return shows that the service was insufficient, a motion may be made to set the service aside.16

The marshal's return is capable of subsequent amendment.17 It has been held that the return to a State court by a sheriff cannot be amended after a removal.18 It may be subsequently supplemented by an affidavit.19

The removal of the suit from a State to a Federal court does not prevent a motion to set aside the service.20 The return of the sheriff or marshal is not conclusive and may be contradictive by the production of statements in the plaintiff's pleading 21 by affidavits 22 or otherwise. The question of jurisdiction is for the ultimate determination of the Federal court.23 A return that a foreign corporation was found within the State, may be contradicted.24 There is no presumption in support of the validity of the service, aside from the facts therein set forth.25

In a suit for an infringement of a patent where the defendant is a non-resident, an allegation that "defendants are now doing business at a designated place within the district," is not a sufficient allegation that they have "a regular and established place of business.” 26 A statement that service has been made

14 Equity Rule 15.

15 Hill v. Gordon, 45 Fed. 276. 16 Scott v. Stockholders' Oil Co., 122 Fed. 835.

17 Phoenix Ins. Co., v. Wulf, 1 Fed. 775.

18 Tallman v. B. & O. R. Co., 45 Fed. 156.

19 Fountain v. Detroit M. & F. S. L. L. Ry. Co., 210 Fed. 982.

20 Goldey v. Morningside News, 156 U. S. 518, 39 L. ed. 517, supra, § 163.

21 U. S. v. Southern Bridging Co., 251 Fed. 400.

22 Boultbee v. International Paper Co., C. C. A., 229 Fed. 951.

23 Gen. Inv. Co. v. Lake Shore & M. S. Ry. Co., C. C. A., 250 Fed. 160, 165; Mechanical Appliance Co. v. Castleman, 315 U. S. 437, 441, 30 Sup. Ct. 125, 54 L. ed. 272.

24 Peper Automobile Co. v. Am. Motor Car Sales Co., 180 Fed. 245.

25 Scheurle v. One Piece Bifocal Lens Co., 241 Fed. 270; Boult bee v. International Paper Co., C. C. A., 229 Fed. 951.

26 Scheurle v. One Piece Bifocal Lens Co., 241 Fed. 270.

upon the defendant's agent does not authorize the presumption that such agent had the right to receive service of process.27 Upon a motion to vacate an order for substituted service or by publication, the insufficiency of the bill is immaterial when the subject-matter is within the statute.28 It has been held: that the order for service by publication may be set aside as to part of the bill and left in force as to the remainder.29

§ 167b. Objections to the service of process. A motion to set aside the service, or a motion to quash the return,2 accompanied by a special appearance for that purpose, is the proper method of testing the sufficiency of the service; unless the defendant prefers to disregard it and subsequently to raise the objection upon an appeal from the decree, or to resist the execution of the decree as void. Neither plea in abatement nor demurrer 7 is necessary. The motion must definitely point out the defects in the service. It has been said that nothing beyond the scope of the motion will be considered. It might be held that the motion was addressed to the court's discretion, where the defendant has a remedy by appeal or a writ of error.10 It was held that the denial of a motion made to quash the writ because of improper service in a patent case did not compel the overruling of a plea in abatement on the ground that no act of infringement had been committed within the jurisdic

27 Boultbee v. International Paper Co., C. C. A., 229 Fed. 951.

28 Canton Roll & Machine Co. v. Rolling Mill Co., 155 Fed. 321; Gage v. Riverside Trust Co., 156 Fed. 1002.

29 Evans V. Charles Scribner's Sons, 48 Fed. 303.

§ 167b. 1 Mason v. N. Y. Steam Power Co., 87 Fed. 241; Bourke v. Amison, 32 Fed. 710; Peper Automobile Co. v. Am. Motor Car Sales Co., 180 Fed. 245.

2 Am. Cereal Co. v. Eli P. C. Co., 70 Fed. 276; Peper Automobile Co. v. Am. Motor Car Sales Co., 180 Fed. 245; Higham v. Iowa State Travelers' Ass'n, 183 Fed. 845; U.

S. v. Southern Dredging Co., 257
Fed. 400.

3 Infra, §§ 169, 170.

40'Hara v. McConnell, 93 U. S. 150, 23 L. ed. 840; Butterworth v. Hill, 114 U. S. 128, 29 L. ed. 119; Herbert v. Bicknell, 233 U. S. 70.

5 Meyer v. Kuhn, C. C. A., 65 Fed. 705.

6 U. S. v. Southern Dredging Co., 257 Fed. 400.

7 Meisukas v. Greenough Red Ash Coal Co., 244 U. S. 54.

8 Bankers Surety Co. v. Town of Holly, C. C. A., 219 Fed. 96. 9 Ibid.

10 Herbert v. Bicknell, 233 U. S. 70.

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