Points decided.

nal Code, yet, being done in pursuance of the laws of another Government (having the sole power to regulate the whole procceding), authorizing the act to be done, prescribing the mode, imposing the duty, and affixing the penalty for the violation of it, the acts cannot be regarded as having been done under the sanction of the laws of this State, so as to subject the parties to punishment under those laws. Mr. Justice Story says exclusive jurisdiction is uniformly attendant upon exclusive legislation. (2 Mason, C. C. Rep. 91; United States v. Cornell. See, also, the opinion of Mr. Justice McLean, 9 Peters, 261; United States v. Bailey.)"

This distinction seems to be properly taken. It follows that the demurrer should have been sustained. Judgment reversed.

SANDERSON, J., expressed no opinion.

E. KENNEDY AND T. R. HOPKINS, APPELLANTS, . THE HIBERNIA SAVINGS AND LOAN SOCIETY, RESPONDENT.

ATTACHMENT- NOTICE TO GARNISHEE. To render the process of attach

ment effectual against a corporation, as garnishee, the writ and notice must be served on the President, or other head of the same, or the Secretary, Cashier, or other managing agent thereof.

IDEM. In the case of a banking corporation, service of process on the

Teller, whose only duty is to receive and pay out all moneys which come into and go out of the bank, is not sufficient to bind the corporation.

APPEAL from the District Court of the Fifteenth District, City and County of San Francisco.

There was judgment for the defendant, and plaintiff appealed.

The facts are stated in the opinion of the Court.

I. A. Fletcher and W. H. Patterson, for Appellants.

Edward F. Head, for Respondent.

CROCKETT, J., delivered the opinion of the Court:

The plaintiffs commenced an action against one O'Regan, on a money demand, and took out an attachment, under which the defendant, a banking corporation, it is claimed, was summoned as a garnishee. Similar proceedings were had in behalf of F. T. and George Fisen, also creditors of O'Regan, who have assigned their demand to the plaintiffs. In each case judgment was duly rendered against O'Regan; but subsequently to the alleged service of the garnishment, the defendant paid to one Tucker the amount standing on its books to the credit of O'Regan, Tucker having produced to the officers of the bank an assignment of the fund in due form, executed by O'Regan prior to the alleged service of the garnishment. This action is brought to recover from the bank the amount paid to Tucker, or as much thereof as will satisfy the two judgments; and the complaint alleges that the assignment from O'Regan to Tucker was fraudulent and colorable, except as to the sum of $280, which it is admitted was due from the former to the latter; and it is claimed that in the payment to Tucker, after service of the garnishment, the defendant acted at its peril, and is responsible to the plaintiffs in the same manner as if no payment had been made. In respect to the service of the garnishment, the allegation of the complaint is, that it was "duly served on the Hiberia Savings and Loan Society, by delivering to J. K. Handy, then cashier and manager of defendants' said Society, a true copy of said attachment, with notice that all debts or credits owing by the Society to O'Regan were attached." In reply to the position of the complaint, the answer denies that Handy is or ever was "their Cashier or manager," or that he was, at any time, "the President or head Secretary, Cashier or managing agent," of the corporation. This raised a direct issue as to the sufficiency of the service of the garnishment; and it was therefore incumbent on the plaintiffs to prove the allegation of the complaint in that respect. The only testimony on this point was that of Handy himself, as follows: "I was Teller of this bank (Hibernia Savings and Loan Society.) My

Opinion of the Court-Crockett, J.

duties were to receive and pay out all moneys that came into and went out from the bank. The attachments in question were served on me. I examined O'Regan's account, and reported to the officer serving the attachments that he had moneys there on deposit, to wit, $2,000. I, at the time, made an entry in pencil of the attachments on the bank book." This is the only proof of service, and it is manifestly insufficient.

Section twenty-nine of the Practice Act prescribes the method of serving a summons on a corporation, to wit: By delivering a copy to "the President or other head of the corporation, Secretary, Cashier, or managing agent thereof." Handy did not stand in either of those relations to the bank. He was only the Teller, whose duty it was to receive and pay out money. So far as the proof shows, he was not the President or head of the corporation, nor its Cashier, having the care and custody of its money and securities, nor its Secre tary or managing agent. If he occupied either of these relations, the fact was capable of proof, and there was no evidence of it in the cause. But, it is said that Section 29 relates only to the service of a summons, and has no application to the service of a garnishment. Section 126 provides that if any person shall have in his possession or under his control any credits or other personal property belonging to the defendant, or is owing any debt to the defendant, "the Sheriff shall serve upon such person a copy of the writ, and a notice that such credits or other property or debts are attached in pursuance of such writ." There is no special direction as to how the service is to be made on a corporation. Section 125, in the fifth subdivision, provides that debits and credits may be attached by leaving with the person owing such debts, or having in his possession or under his control such credits, "or with his agent," a copy of the writ. The term "agent," as employed in this connection, when applied to the service of a garnishment on a corporation must be construed to mean the "managing agent." The next preceding subdivision prescribes how stock or shares, or interest in stock or shares of any corpor

ation or company, may be attached; to wit, by a service upon the "President, or other head of the same, or the Secretary, Cashier, or other managing agent thereof," and these are precisely the same officers on whom Section 29 requires a summons to be served. It is not probable, that in the next subdivision the Legislature intended to depart from this policy, and authorize a service on any "agent" of a corporation; and particularly without defining the nature of the agency. Corporations usually have numerous "agents" for the different departments of their business. An insurance company may have, besides their chief officers, numerous soliciting agents in various portions of the State; and, in one sense, every Superintendent or conductor on a railroad is the agent of the company, and every master or clerk of a steamboat is, to a certain extent, the agent of the owner. And yet, it would scarcely be claimed that an insurance company would be bound by a garnishment served on one of its traveling agents, or a railroad company by a service on a conductor, or a navigation company by a service on the master, clerk or mate of one of its boats. Such a practice would tend to the most perplexing results; and nothing but the most explicit language in the statute would justify us in upholding such a construction of it. We hold, therefore, that under subdivision 5 of Section 125, if service be made on the "agent" of a corporation, it must be on the managing agent," as required in the fourth subdivision, and in Section 29. At common law, service of process on a corporation must be made on the President or principal officer. (Angell & Ames on Corp. S. 637; 1 Tidd's Pr. 116; McQueen v. Middlesex Man. Co. 16 John. 6.)

So that, whether it be tested by the common law rule, or by analogy to the provisions of the Practice Act providing for the service of a summons on a corporation, the service of the garnishment in this case was insufficient, and was in no manner obligatory on the defendant.

This view of the case renders it unnecessary to discuss the other points raised on the appeal.

Judgment affirmed.

SANDERSON, J., dissented.

Points decided.

ROBERT NORBLETT, RESPONDENT, . B. E. FARWELL, APPELLANT.

UNLAWFUL DETAINER.- The Act of April 27, 1863, remains in force, so far as it relates to unlawful detainers, though repealed so far as it relates to forcible entries and forcible detainers.

PRESUMPTION OF APPEARANCE.- The Court will not presume the appearance of a defendant not regularly served with summons, because a continuance was ordered after a default had been taken.

APPEAL from the County Court of Alameda County.

The

This was an action brought under the statute concerning unlawful detainers, for the restitution of demised premises after the expiration of the term, and for damages. complaint was in the usual form, and bore the indorsement of the County Judge to the effect that the same was presented to him on the 8th of April, 1868; that he ordered the time for hearing the case be fixed for April 13, 1868; that summons be issued on the same and be served on the de- fendant not less than three days previous to said 13th of April; whereupon a summons was duly issued requiring the defendant to appear on the said 13th of April, and served on the defendant on the 8th day of April, 1868. On the return day of the summons the default of the defendant was duly entered, and on the 2d day of May, 1868, final judgment, upon default, was entered in favor of the plaintiff. In the final judgment it is stated "that the cause had been duly continued from the 13th of April to the 2d day of May, 1868."

From the judgment the defendant appealed.

Clarke & Carpentier, for the Appellant made the point:

That the County Court never had jurisdiction of the person of the defendant; for by the Act of 1863, the Civil Practice Act regulates all proceedings in cases of forcible entry and unlawful detainer, except those cases specially provided for by that Act itself. That this Act was not repealed by the Act of 1866, so far as it relates to unlawful detainers. That by its unrepealed provision the defendant was titled to ten days after service of summons to appear and answer. Consequently, the Act of the County Court in