34. An affidavit for an order of publication that did not state that any summons was issued against the defendant, when he left the state, or that any was about to be issued, or that he was threatened with, feared or expected a suit, and contained nothing from which it could be inferred that he had any intent to defraud his creditors, or to avoid service of summons, was defective, and an order for publication founded thereon unauthorized and void.

35. When an infant defendant at the time of the commencement of a partition suit, resided in California, and an order for service by publication was granted upon an affidavit, which did not show that the residence of the infant was unknown to the plaintiff, and could not with reasonable diligence be ascertained, the defendant was not properly served with process, so as to give a good title to a purchaser at a sale under the judgment or decree of partition.

36. On an application for an order of publication, it must be shown not only that the case falls within one of the five subdivisions of this section, but the jurisdictional fact that the person on whom the service of the summons is to be made, cannot after due dil igence be found within this state, must also be shown.

37. If the affidavit upon which an order for publication is granted is insufficient, the plaintiff will not be aided by the fact that after the order for publication was made, the summons and complaint were served upon the defendant, personally, out of this state.

38. (9 Q.) If a defendant in a foreclosure suit, who is proceeded against as an absentee, applies to be let in to defend, after decree and before cale of the mortgaged premises, and does not swear to a defense on the merits, he must pay the costs already accrued subsequent to the time for his appearance, and must also give security to pay the future costs of the suit, if he does not succeed in his defense.

39. If a defendant in a foreclosure suit, who is proceeded against as an absentee, ap. plies to be let in to defend, after decree and before sale of the mortgaged premises, and swears to a good defense upon the merits, and states what it is, the court will not require him to pay costs, where he applies the first opportunity after he has notice of the proceedings against him. The absentee may be required to file security for costs.

40. If a non-resident, within one year from the entry of judgment, is allowed to come in and defend, that fact of itself, does not open the judgment nor stay proceedings upon the execution. But a third person asking to come in and defend, or contest the plaintiff's claim, must do so before judgment.

41. (10 Q.) A delay of fifteen days to deposit a copy summons and complaint, in the post-office, directed to the defendants, in fɔreclosure cases where publication is ordered, is an irregularity which affects the title, and a purchaser will be relieved from his purchase therefor.

42. Where the order for publication requires the summons and complaint to be served upon nou-residents by forthwith depositing them in the post-office, directed to such persons, the word "forthwith," in this connection should be construed as synonymous with "all reasonable dispatch."

43. Where, after obtaining an order of publication of summons against a non-resident defendant, in a foreclosure suit, there was a delay of four days before depositing a copy of the summons and complaint in the post-office, and it was sufficiently excused, it was considered sufficient, but a delay of fifteen days in making such deposit not excused, on the contrary, caused a defect in the title of the purchaser at the sale under the decree. 44. (11 Q.) A reference to this section will show that an order for publication, cannot be had against a defendant even a foreign corporation, without proving to the officer who is to make the order, that "the person to be served," not the defendant cannot, "after due diligence be found in this state."

45. (12 Q.) In a case where the defendant whenever the sheriff, who was trying to serve a summons upon him, approached, locked himself in his house, and caused notice of his approach to be given by the blowing of horns, and as soon as the sheriff left, would ride after him in sight but would not come near enough to be served, and would

then ride away out of sight, it was said not to come within the provisions of this section, for service by publication. The act of 1853 (post, Q. 14), provides for service in such

cases.

46. The fact of defendant's non-residence is insufficient to authorize an order for publication of summons; it must also appear that unsuccessful efforts have been made to find the defendant within the state.

46. An order for publication of the summons upon a non-resident defendant, where it does not appear that proper efforts have been made to find him, cannot be sustained subsequently by proof that the defendant was not in fact within the state,

47. The validity of an order for the publication of summons, must be judged solely upon the sufficiency of the affidavits upon which it was granted.

48. The only case in which a resident of this state can be proceeded against by publication, under the provisions of the Code, is under the 2nd subdivision of this section. 49. The first part of this section says "When the person on whom service is to be made, cannot be found &c., within the state," but that is qualified by the latter part of the section, which defines the special cases to which these general words apply.

50. (13 Q.) The facts required to be shown in an affidavit for an order of publication on a non-resident defendant, should be stated positively and not on information and belief. 51. An order for publication resting upon insufficient proof, will be set aside on motion.

52. An affidavit for an order of publication which stated that "the defendant had property within the state of New York, as this deponent has been informed and believes that he the said defendant is, as this deponent is informed and believes interested, and has an interest in real estate in the county of Albany, and in other counties in the state of New York," is defective. There is no proof of the fact.

53. The court cannot make an order for publication against a non-resident defendant, where he has some property only temporarily in the state, with the intention of forthwith removing it, under subdivision 3 of this section, which allows such order in an action on contract, when the defendant has property in the state.

54. The provision of this section, subdivision 3, is in derogation of the rights of defend ants and should be strictly construed.

55. The courts have no jurisdiction to order publication of summons against a non-res ident defendant, unless he has property within this state at the time the order was granted, and that fact must be positively asserted.

56. The question of jurisdiction of the court that granted the order of publication, may be raised at any time by the defendant.

57. A judgment founded upon an order of publication, made by a court that had no jurisdiction, is void.

574. This section makes the jurisdiction of the court to depend, not upon the judge who grants the order, being satisfied of the fact upon which the order is asked, but upon the existence of the fact, and it is not for him to determine as to the existence of the fact, upon an ex parte application in such a way as to bar or conclude the defendant.

58. (14 Q.) Whenever it shall satisfactorily appear to any court, judge of the supreme court, or any county judge, by the return or affidavit of any sheriff, deputy sheriff or constable, authorized to serve or execute any process or paper for the commencement, or in the prosecution of any action or proceeding, that proper and diligent effort has been made to serve such process or paper, on any defendant residing in this state, and that such defendant cannot be found, or if found, avoids or evades such service, so that the same cannot be made personally, such court or judge may direct the service of any summons, subpoena, order, notice, or other process or paper, to be made by leaving a copy at the residence of such defendant, with some person of proper age, if admittance can be obtained and such proper person found who will receive the same, and if admittance cannot be obtained, or any snch proper person found, who will receive the same, by affixing the same to the outer or other door of said residence, and by putting another copy

thereof, properly folded or enveloped and directed to the person to be served, at his place of residence, into the post office, in the town or city where such defendant resides, and paying the postage thereon. (Laws of 1853, chap. 511.)

59. In laws of 1863, ch. 212, p. 388, the act of 1853 was amened so as to exempt soldiers, sailors, officers, musicians, &c., from the service of process while actually absent from their town or place of residence, and actually engaged in the army, navy or military service of the United States, except in partition cases and cases where no personal claim is made.

60. The act of 1853 was intended to authorize the service of process, &c., when the party to be served could not be found (either in or out of the state), or, being found, should evade personal service.

61. An order (under the act of 1853) for the service of a summons and complaint, made upon a statement of the defendant's wife that he had gone to Ohio and was not expected back during the summer, except on a visit, was irregular.

62. A plaintiff will not be entitled to the substituted service (under the act of 1853) unless he can show that the defendant cannot be found either in or out of the state, nor if the papers show where the absent defendant may be found.

63. Judgment and execution will be set aside where, under the "act to facilitate the service of process in certain cases" (1853), service of summons was made at the defendant's residence and place of business, New York, while the plaintiff knew he was absent in California on business.

64. The act (of 1853) authorizing substituted service of subpoena and complaint to be made in certain cases, under an order of the court, where 'personal service cannot be made, requires that the Judge who makes the order shall be satisfied that the defendant sought to be served resides in this state and cannot be served, for the reasons stated, before he can act in the matter; and, being satisfied, he may make the order.

65. (16 Q.) It is desirable to have the order for publication of summons recite the summous or refer to it as being annexed. The order should show that there was a summons, and identify it.

66. Ordering a summons to be published in anticipation of one being made out, would not connect them on the record, except by reference to the claim, which is unsafe.

67. When an order for the publication of a summons is granted under subdivision 2 of this section, which presupposes that the debtor is a resident of the state, but has departed therefrom or kept himself concealed therein, and it also appears from the affidavit that he is a resident of a particular place in this state, the order must direct service of the summons and complaint to be made upon the defendant by mail.

68. If an order for the publication of a summons is granted upon an insufficient affidavit, and does not direct service of the summons and complaint to be made by mail in a proper case for such a service, the court acquires no jurisdiction of the case, and a judgment entered therein is void.

69. The order of publication, and all subsequent proceedings, even to the judgment, were irregular, where the affidavits upon which the order was granted did not show a case for commencing the action by publication.

70. In case evidence is given showing that the defendant's absence was with intent to defraud his creditors or to avoid the service of summons, the order should direct a copy of the summons and complaint to be deposited in the post-office directed to the defendant at his place of residence. The omission to do this is a fatal irregularity.

71. An order of publication is defective which directs that a copy of the summons and complaint be deposited in the post-office addressed to the defendant, and that is all. It should direct that a copy be forthwith deposited, &c. And should also state that it be directed to the defendant at his residence, naming it, if it is known.

72. (17 Q.) In a partition suit in which the plaintiff is obliged to make "unknown owners" defendants, he is entitled to proceed by publication under this section, where a proper designation of these parties are given.

73. Whether a judgment recovered against a non-resident defendant on a service of summons by publication pursuant to the Code is conclusive and effectual for all purposes and to the same extent as if personal service had been made on the defendant? Quere. 74. A judgment recovered against a non-resident by service of the summons by publication is limited in its effect to the property which the defendant has in this state. sequently, the defendant cannot be sued upon the judgment in another court.

Con

$136. Proceedings when there are several defendants, and part only served.

Where the action is against two or more defendants, and the summons is served on one or more of them but not on all of them, the plaintiff may proceed as follows:

1. If the action be against defendants jointly indebted upon contract, he may proceed against the defendant served, unless the court otherwise direct; and if he recover judgment it may be entered against all the defendants thus jointly indebted, so far only as that it may be enforced against the joint property of all and the separate property of the defendants served, and if they are subject to arrest, against the persons of the defendants served; or

2. If the action be against defendants severally liable, he may proceed against the defendants served in the same manner, as if they were the only defendants.

3. If all the defendants have been served, judgment may be taken against any or either of them severally, when the plaintiff would be entitled to judgment against such defendant or defendants if the action had been against them or any of them alone.

4. If the name of one or more partners shall, for any cause, have been omitted in any action in which judgment shall have passed against the defendants named in the summons, and such omission shall not have been pleaded in such action, the plaintiff, in case the judgment therein shall remain unsatisfied, may by action recover of such partner separately, upon proving his joint liability, notwithstanding he may not have been named

in the original action; but the plaintiff shall have satisfaction of only one judgment rendered for the same cause of action.

1. Question. Has this section been amended since its passage in 1848 ?

Answer. It has, in 1849, 1851 and 1866, which last amendment reads as above. 2. Q. How did this section read in 1848, 1849 and 1851?

A. As follows:

$115. [1848.] Where the action is against several defendants, any one of whom is actually served with the summons, the plaintiff, instead of service of the summons, actually or by publication, on the others, as provided by sections 113 and 114, may proceed as follows:

1. If the action be against several persons, jointly indebted upon a contract, he may proceed against the defendant served, in the same manner, as at present, and with the like effect, unless the court shall otherwise direct:

2. In an action against defendants severally liable, he may amend his complaint, of course, by striking out the name of the other defendants, and may proceed against the defendants.

served.

$136. [1849.] Where the action is against two or more defendants, and the summons is served on one or more, but not on all of them, the plaintiff may proceed as follows:

1. If the action be against several persons jointly indebted upon a contract, he may proceed against the defendant served, in the same manner as at present, and with the like effect, unless the court shall otherwise direct; or,

2. In an action against defendants severally liable, he may proceed against the defendant or defendants served, in the same manner as if such defendant or defendants were the only parties proceeded against;

3. If all the defendants have been served, judgment may be taken against any or either of them severally, when the plaintiff would be entitled to judgment against such defendant or defendants, if the action had been against them or any of them alone. When an order shall be made extending the time to answer beyond the time for which the application for the relief demanded in the complaint shall have been noticed, if the defendant fail to answer, the application for judgment may be made without further notice.

§ 136. [1851.] Where the action is against two or more