judgment in the district against a foreign corporation obtained by non-residents,11 or to cancel stock 12 and bonds, 13 or by claimants to shares of stock in a domestic corporation to set aside an unlawful transfer of their shares and enforce their right to new certificates, 14 although the stock certificates and bonds sought to be cancelled are held by non-residents outside of the jurisdiction; but not where the corporation is domiciled without the district even it has been held, if it appears therein, when the stock is held by a non-resident defendant; 15 nor, it has been held, in a suit by a subscriber to a syndicate, to enforce his right to stock, in which the managers had invested the syndicate funds.16 Process may thus be served in a suit to establish the existence of a lost document which is a muniment of the title to lands in the possession of the complainant.17 An absent judgment debtor may thus be served in a suit by the creditor to appropriate his assets; 18 but the statute does not authorize a simple contract creditor to maintain a creditor's bill, to set aside a fraudulent conveyance of property.19 Process may thus be served; in a suit by a receiver to adjust equities between himself and non-resident defendants, when a resident defendant has obtained for his own benefit, as well as theirs, a judgment within the jurisdiction, which he is seeking to en Charles Scribner's Sons, 58 Fed. 303. See Canton Roll & Machine Co. v. Rolling Mill Co. of America, 155 Fed. 321; Gage v. Riverside Trust Co., 156 Fed. 1002. 11 Schultz v. Diehl, 217 U. S. 594, 54 L. ed. 896. 12 Howard v. Nat. Telephone Co., 182 Fed. 215; Hudson Nav. Co. v. Murray, 233 Fed. 466, s. c., 236 Fed. 419. 18 State Nat. Bank v. Syndicate Co., 178 Fed. 359; Thompson v. Emmett Irr. Dist., C. C. A., 227 Fed. 560. 14 Jellenik v. Huron Copper Mining Co., 177 U. S. 1, 44 L. ed. 647; Sohege v. Singer Mfg. Co., Ch. N. J., Nov. 1907. See Merritt v. Am. Steel Barge Co., 79 Fed. 228; Ryan 16 Jones v. Gould, C. C. A., 149 18 Brigham V. Ludington, 12 Blatchf. 237. Compare Picquet v. Swan, 5 Mason, 35; s. c., 5 Mason, 561. 19 Canton Roll & Machine Co. v. Rolling Mill Co., 155 Fed. 321. force against the fund in the receiver's hands.20 In a suit by the creditors of a corporation to set aside a conveyance of its land and a mortgage of its personalty, and also to obtain a dissolution of the corporation and a receiver.21 In a suit by a bondholder, to restrain the trustee of his mortgage from paying to the mortgagor, in fraud of his rights, the proceeds of the sale of land, which, by the terms of the mortgage, should be used as a sinking fund for the redemption of the bonds.22 In a suit to enjoin a foreign corporation from interfering with the complainant's right of way for a telegraph line.23 In a suit to compel specific performance of a contract to sell real estate in a State whose laws make a decree, where the defendant does not appear, as effectual as a conveyance by him; 24 but where there was no such statute it was held that process could not thus be served.25 Nor, it has been held, where the relief sought requires the performance, by the non-resident defendant, of a personal act, such as the acceptance of a building and pavement for the same, which cannot, like the execution of a deed, be performed on his behalf by a master.26 It has been suggested that a lien on partnership assets may be thus enforced.27 The phrase, "claim to property;" is used in the statute in contrast to liens or encumbrances upon the property and relates only to claims in the nature of an assertion of ownership or proprietary interest, or other direct right or claim to the property itself.28 The statute does not apply 20 Brown v. Pegram, 143 Fed. 701. 21 Mellen v. Moline Iron Works, 131 U. S. 352, 33 L. ed. 178; Single v. Scott Paper Mfg. Co., 55 Fed. 553, 557. 22 Pollitz V. Farmers' Loan & Trust Co., 39 Fed. 707. 23 Western Union Tel. Co. v. Louisville & N. R. Co., 229 Fed. 234. 24 Morrison v. Marker, 93 Fed. 692. 25 Municipal Inv. Co. v. Gardiner, 62 Fed. 954; Nelson v. Husted, 182 Fed. 921. See Spurr v. Scoville, 3 Cushing (Mass.) 578. But see So hege v. Singer Mfg. Co., Ch. N. J., Nov. 1907. 26 York County Sav. Bank v. Abbott, 139 Fed. 988. See § 64, supra, § 441, infra. 27 Jackson v. Hooper, 171 Fed. 597. 28 Ladew v. Tennessee Copper Co., 179 Fed. 245, 251, per Sanford, J.: "There appears to be no direct adjudication upon the question whether a claim of this character may be properly considered a claim to property within the meaning of the statute. The statement in Shainwald v. Lewis (D. C.) 5 Fed. 310, 317, to a suit by a general creditor who has acquired no lien by contract, execution, or otherwise.29 The statute does not apply to a suit by a trustee in bankruptcy to set aside a preferential assignment to a non-resident of a debt due the bankrupt.30 Nor to a suit by a bondholder secured by a mortgage against the lessee of the mortgagor and the purchaser of the mortgage property for that by the words 'legal or equitable lien or claim against real or personal property' Congress 'intended to reach every case in which there should be any sort of charge upon a specific piece of property, capable of being enforced by a court of equity' which is cited in 1 Rose's Code, Fed. Pro. § 856, note C, as authority for a similar statement, was purely obiter; the only point involved in the case being that Rev. St. § 738, in which these words originally occurred, did not apply to a suit in which the plaintiff sought to subject the general property of the defendant to the payment of its debts, but only to suits to enforce some pre-existing lien or claim upon a specific piece of property. Neither is the question controlled by the definition of the word 'claim' given by Mr. Justice Story in Prigg v. Pennsylvania, 16 Pet. 536, 615, 10 L. ed. 1060, as 'a demand of some matter as of right, made by one person upon another, to do or forbear to do some act or thing as a matter of duty,' this definition being given in a case involving the construction of a statute providing that slaves should be delivered up on claim of the party' to whom their service was due; the meaning of the word 'claim' as used in a statute of this character in reference to the 'claim of' one person upon another to do a certain thing, being manifestly different from its meaning as used in 'claim to "A claim is a challenge by a man of the propriety or ownership of a thing, which he has not in possession, but which is wrongfully detained from him.' On the whole, I am of the opinion that as it ap pears from the concluding portion of this section that it relates entirely to suits of which property is the 'subject,' and as the words property' are evidently used in contrast to liens or encumbrances upon property and are the only words in the section under which a claim to the direct ownership of property may be included, these words relate only to claims made to the property in the nature of an assertion of ownership or proprietary interest, or other direct right or claim to the property itself," affirmed Ladew v. Tennessee Copper Co., 218 U. S. 357, 54 L. ed. 1069. 29 Bank of Commerce & Trust v. M'Arthur, 248 Fed 139. 30 Murphy v. Ford Motor Co., 241 Fed. 134. an accounting and an application of the rent to the payment of his bonds.31 The statute does not apply to all suits of a local nature,32 nor to a suit in equity to enjoin a nuisance.33 Nor to a suit to set aside a transfer of insurance policies, issued by a foreign insurance company and not within the district although secured by bonds within the district,34 nor to a suit to collect an insurance policy, issued by a domestic corporation, when a necessary party, is a non-resident.35 Nor to a suit by an Insurance Company, paying for an inspection of the vital organs of the insured, which are in the custody of a clerk of a State court.36 Nor to a suit by heirs against testamentary trustees, to recover a balance in the hands of the defendants.87 Nor to a suit upon a bond, given to release an attachment by a State court.38 Nor to a suit to establish and enforce a right of membership in the Associated Press, in a district where the latter corporation is not domiciled; although the right is to be exercised in such district.39 Nor to a suit to cancel a promissory note.40 It has been held that a subpoena cannot thus be served when the main object of the bill is for an accounting by an absent and nonresident defendant, although there is also a prayer for the appointment of a receiver of property within the district; 41 but it seems that service can thus be made in a suit to establish a trust in real estate although the bill prays an accounting.4 42 Process cannot thus be served in a suit to remove a cloud upon the title to a patent-right although the official letters-patent evidencing the patent-right are within the jurisdiction.48 The property affected must be actually, and not merely constructively, within the district.44 In a suit affecting the title to shares of the capital stock of the corporation these shares are ordinarily held to be property located in the State 45 where the corporation was organized irrespective of the location of the certificates.46 The court within the district where a will was probated cannot thus acquire jurisdiction of a suit against an absent executor, who has removed the funds from the State; 47 but after the jurisdiction of the Federal court has attached, it seems that it cannot be defeated by an order of the State court directing such a removal.48 The existence of property within the district should be stated positively and not by inference.49 § 166b. Practice in statutory service of a subpoena. It has been held at circuit: that an order in pursuance of this statute may be obtained immediately on filing the bill, upon proof by affidavit that the defendant does not dwell within the district, and cannot be served or found therein; that there is need in such case of a previous attempt to serve a subpoena within the district; 2 that the day named for his appearance need not be one of the rule-days of the court; that personal service of the order must be made in all cases where the residence of the absent defendant is known or can be made within a reasonable time and by the exercise of reasonable diligence; that its service by publication can only be authorized upon proof by affidavit of 6; Standard Gas Power Co. of Ga. v. Standard Gas Power Co. of Dela., 224 Fed. 990. 44 Chase v. Wetzlar, 225 U. S. 79, 56 L. ed. 990; Meisukas v. Greenough Red Ash Coal Co., 244 U. S. 54. 45 Jellenik v. Huron Copper Min. Co., 177 U. S. 1, 44 L. ed. 647; Gideon v. Representative Securities Corp., 232 Fed. 184; Hudson Nav. Co. v. Murray, 233 Fed. 466, s. c., 236 Fed. 419; Holmes v. Camp, 219 N. Y. 359, 114 N. E. 841. 46 Black v. Foreman Bros. Banking Co., 218 Fed. 264; Beal v. Carpenter, C. C. A., 235 Fed. 273; Kil gour v. Northern Gas Light Co., 2 Woods 144. 47 Chase v. Wetzler, 225 U. S. 79, 56 L. ed. 990. 48 Ingersoll v. Coram, 211 U. S. 335, 359, 53 L. ed. 208, 225; reversing on another point C. C. A., 148 Fed. 169; modifying and affirming 136 Fed. 689. 49 Jackson v. Hooper, 171 Fed. 597, 598. § 166b. 1 Forsyth v. Pierson, 9 Fed. 801; U. S. v. American Lumber Co., 80 Fed. 309. But see Bronson v. Keokuk, 2 Dill. 498. 2 Ibid. 3 Forsyth v. Pierson, 9 Fed. 801. |