which, on the 30th of July, 1898, it drew a draft on him, of which the following is a copy:

"The Wilmot & Hobbs Manufacturing Company.

85

"Bridgeport, Conn., July 30, 1898.

"Forty-five days after date, pay to the order of National Shoe & Leather Bank, New York, seventy-two dollars, value received, and charge the same to account of the Wilmot & Hobbs Mfg. Co.

"To Receiver Worcester Cycle Mfg. Co.

"$72.

"Countersigned by Frank A. Wilmot, Presdt."

P. L. Bryning, Secy.

When the draft was presented, it was accepted, the following being written across the face of it: "Accepted, Frank Sullivan Smith, Receiver. Louis F. Wilson, Attorney." The draft was not paid, and was subsequently assigned to the plaintiff, who brought this action to recover the amount of it from the defendant personally. At the close of the trial, both parties having moved for the direction of a verdict, a verdict was directed for the defendant, and from the judgment entered thereon the plaintiff has appealed.

We think the direction was right. The order of the court appointing the defendant receiver authorized him "to carry on and continue the business of the cycle company" so far as necessary to enable him to collect the accounts and sums due or to become due. This authorized the defendant to purchase property so far as such purchase became necessary to carry on the business contemplated in the order. Under this authority the property-the consideration of the draft-was purchased. It was purchased by the defendant as receiver, and not individually; and this fact, the evidence clearly establishes, was known to and acted upon by the Wilmot & Hobbs Manufacturing Company at the time the sale and delivery of the merchandise was made and the draft drawn. The goods were all billed “To Receiver Worcester Cycle Manufacturing Company." The draft was drawn "To Receiver Worcester Cycle Mfg. Co." The complaint alleges "that the defendant, at the time of making said draft, was conducting the business of the Worcester Cycle Mfg. Co. under the title of receiver, and that said draft was given to

secure the payment of merchandise sold and delivered by the Wilmot & Hobbs Mfg. Co. to the said defendant, conducting the business as aforesaid as such receiver." Considering the nature of the property purchased, the business in which it was used, and the powers given to the receiver under the order appointing him, the presumption arises that the purchase was made in obedience to that order, and for the purpose intended by the court, rather than that it was made for a purpose not contemplated by it. Sager Manufacturing Co. v. Smith, 45 App. Div. 358; 94 St. Rep. 849; 60 Supp. 849. We are therefore of the opinion that the defendant was expressly authorized to make the purchase, and that the Wilmot & Hobbs Manufacturing Company knew it was made by the defendant as receiver, and not individually, and with this knowledge sold and delivered the merchandise to him, and drew the draft in question, ntending to give credit to the receivership alone. If we are orrect in this conclusion, then it necessarily follows that the lefendant did not personally obligate himself to pay the purhase price or the draft. Sager Manufacturing Co. v. Smith, 15 App. Div. 358; 94 St. Rep. 849; 60 Supp. 849; Nason Manufacturing Co. v. Garden, 52 App. Div. 363; 99 St. Rep. 147; 65 Supp. 147; High, Rec. § 272; Cook, Corp. 878. Manufacturing Co. v. Smith, supra, is directly in point. That was an action brought against this same defendant, in which it was sought to hold him personally liable for merchandise purchased under facts quite similar to those involved in the action before us. There the court held, after reviewing many authorities, that if a receiver authorized to continue and carry on the business of a corporation, and to purchase supplies and materials for that purpose, enters into a contract as receiver for the furnishing of such supplies, and discloses the capacity in which he assumes to act, he will incur no personal liability; that in such case the vendor has a cause of action against him as receiver only. Under this authority, as well as the others cited, we think the judgment appealed from is right, and must be affirmed, with costs.

All concur, except VAN BRUNT, P. J., who dissents.

OLEAN ST. RY. CO. v. FAIRMOUNT CONST. CO.

[55 App. Div. 292; 101 St. Rep. 165; 67 Supp. 165.]

(Supreme Court, Appellate Division, Fourth Department. November 27, 1900.)

SERVICE OF PROCESS-NONRESIDENT-ENTICING INTO STATE-OPPORTUNITY TO LEAVE.

The president of a foreign corporation went to the city of New York at the invitation of a creditor of the corporation to confer with the latter concerning a settlement of a personal matter in dispute... While the

NOTE. SERVICE OF PROCESS BY ARTIFICE ON NONRESIDENT OF TERRITORIAL JURISDICTION OF COURT.

a. In general.

b. When presence obtained by resort to criminal proceedings.

c. When presence obtained by misrepresentation or other im

proper means.

d. Extent of relief—Practice.

a. In general.

The resort to any subterfuge, scheme, enterprise, pretense or design, by which a defendant is brought into this state for the purpose of arresting him, must fail, unless it is warranted by law, and the question is not dependent upon the honest convictions of the persons engaged in the project, but upon the legality of the act.

Smith v. Meyers, 1 T. & C. 665.

The word inveigle in connection with service of process means to induce a party to come within the jurisdiction of the court by some scheme, subterfuge, fraud, trick, device or misrepresentation, that he may be served with process.

Higgins v. Dewey, 34 St. Rep. 692; 13 Supp. 570.

Service of process is always proper when the person served has come into

1900]

Olean St. R. Co. v. Fairmount Const. Co.

two were discussing the matter on their first meeting, a process server stepped up and served a summons on such president in the creditor's action on the claim against the corporation. Held, that, even if the circumstances did not indicate that the creditor had fraudulently enticed such president into the state for the purpose of obtaining service on the corporation, the service should be set aside, as the creditor was bound to give such president a reasonable opportunity to leave the state after the termination of the conference.

Appeal from special term, Cattaraugus county.

Action for money loaned by the Olean Street-Railway Company against the Fairmount Construction Company and others. From an order denying a motion to set aside the service of the summons and complaint, defendant appeals. Reversed.

SERVICE OF PROCESS BY ARTIFICE ON NONRESIDENT OF TERRITORIAL JURISDICTION OF COURT,-continued.

the jurisdiction voluntarily and without any artifice or inducement on the part of the person for whom the service is made.

Atlantic & P. Tel. Co. v. Baltimore & O. R. Co., 46 Super. 377.

b. When presence obtained by resort to criminal proceedings.

Service of an order of arrest in a civil action or other process therein will be set aside if made upon a party brought within the jurisdiction by requisition on a criminal charge, at the instance of the party in whose behalf the service was made and with his design to thereby effect the same. Lagrave's Case, 14 Abb. N. S. 333 (note)

And this rule was applied where the service of process was made in behalf of certain of the creditors of the person served, who combined and contributed with other creditors, not to collect their claims, but for the purpose of bringing the fugitive to justice and punishment, and a requisition in extradition was obtained by an officer employed by their committee, which criminal proceedings would not have been otherwise instituted. Id.

Where a person is unlawfully arrested on an alleged criminal charge committed without the jurisdiction and is detained under such arrest for the purpose of compelling settlement of a demand claimed to have been fraudulently incurred elsewhere, and such purpose proving ineffectual, an order of arrest in a civil action is obtained and he is arrested under it, there is a clear abuse of the process of the law, and the order of arrest will be set aside.

Benninghoff v. Oswell, 37 How. Pr. 235.

Argued before ADAMS, P. J., and MCLENNAN, SPRING, WILLIAMS, and LAUGHLIN, JJ.

Wade & Stevenson (A. C. Wade, counsel) for appellant.

Cary, Rumsey & Hastings (Allen J. Hastings, counsel) for respondent.

ADAMS, P. J. The defendant, the Fairmount Construction Company, is a foreign corporation organized and existing under the laws of the state of New Jersey. At the times hereinafter mentioned Clarence P. King was the defendant's president, and resided in the city of Philadelphia. The plaintiff is a domestic corporation, with its place of business in the city of

SERVICE OF PROCESS BY ARTIFICE ON NONRESIDENT OF TERRITORIAL JURISDICTION of Court,-continued.

And an arrest in a civil action will be set aside where prior thereto the plaintiff's clerk, without legal grounds therefor, obtained a warrant against the defendant in Philadelphia on the charge that he was a fugitive from justice, and the defendant to avoid "a requisition from Albany" and publicity consented to go with the clerk to New York where, upon his arrival, the service of the first mentioned order of arrest was made.

Smith v. Meyers, 1 T. & C. 665.

Creditors or other persons who were not connected with criminal proceedings by which a person was brought within the jurisdiction may, however, cause civil process to be served upon him in actions in which they are plaintiffs.

Lagrave's Case, 14 Abb. N. S. 333 (note)

Adriance v. Lagrave, 59 N. Y. 110; Rev'g 1 Hun, 689.

Bank of the Metropolis v. White, 26 Misc. 504; 91 St. Rep. 460; 57 Supp. 460.

Slade v. Joseph, 5 Daly, 187.

Williams v. Bacon, 10 Wend. 636.

And the tendency of some of the cases is to extend this rule to persons who took part in the institution of the criminal proceedings, but without design or intent to thereby effect service of process in a civil action.

Adriance v. Lagrave, 59 N. Y. 110.

Browning v. Abrams, 51 How. Pr. 172.

Thus in Browning v. Abrams, just cited, it was held that where a de