§ 13. Section 114 is amended, so as to read as follows: § 114. Where the person, on whom the service is to be made, cannot, after due d ligence, be found within the state, and that fact shall appear by affidavit, to the satisfaction of the court or a judge thereof, and it shall in like manner appear that a cause of action exists against the defendant, in respect to whom the service is to be made, such court or judge may grant an order, that the service be made, by the publication of a summons, in either of the following cases:

1. Where the defendant is a resident of this state;

2. Where he has property therein;

3. Where the subject of the action is real property in this state, and the defendant has, or claims, a lien or interest, actual or contingent, therein, or the relief demanded consists, wholly or partly, in excluding the defendant from any interest therein;

4. Where the action is founded on a mortgage upon property in this state, and the defendant is, by reason of an instrument executed by him, chargeable with the debt, for which the mortgage is a security;

5. Where the action is for a divorce, in the cases prescribed by

statute.

The order shall direct the publication to be made in two newspapers, to be designated, as most likely to give notice to the person to be served, and for such length of time, as shall be deemed reasonable, not less than once a week for five weeks. In case of publication, the court or judge shall also direct a copy of the summons,

to be forthwith deposited in the post-office, directed to the person to be served, at his place of residence, unless it appear that such residence is neither known to the party making the application, nor can with rsasonable diligence be ascertained by him. When publication is ordered, personal service of the summons, out of the state, shall be equivalent to publication, and deposit in the post-office. If the summons shall not be personally served on a defendant, nor received by such defendant through the post-office, in the cases provided for in this section, he, or his representatives, shall, on application and sufficient cause shown, at any time before judgment, be allowed to defend the action: and he, or his representatives, may, in like manner, be allowed to defend after judgment, or at any time within one year after notice thereof, and within seven years after its rendition, on such terms as shall be just; and if the defence be successful, and the judgment or any part thereof shall have been collected or otherwise enforced, such restitution may thereupon be compelled as the court shall direct. And in all cases, where publication is made, the complaint shall be first filed, and the summons, as published, shall state the time and place of such filing.

The original section reported by the commissions, was changed in its progress through the legislature, and became very long. It is re-written, so as to break it into subdivisions, to remove any doubt about its construction, and to provide for some cases, those mentioned in subdivisions 3, 4, and 5, which might not be reached by it, as it stands in the code.

§ 14. Section 115 is amended, so as to read as follows:

§ 115. 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 amend his complaint, of course, by striking out the names of the other defendants, and may proceed against the defendants served, or

3. In case of a summons issued under the 2d subdivision of section 108, if the service shall have been made upon some of the defendants only, in sufficient time to apply for judgment, upon failure to answer, on the day mentioned in the summons, the court may, on that day, upon the application of the plaintiff, on an affidavit showing due diligence, to serve the summons, on the other defendants, designate another day for the plaintiff to move for judgment. The time may be again extended in like manner, in the discretion of the court. And a new summons may be issued by the plaintiff, to defendants not already served, and repeated from time to time, till all the defendants be served.

The third subdivision is added, not to introduce a new rule, but to define more clearly the course, which should be pursued, about which some embarrassment appears to have arisen.

The

§ 15. Section 133 is amended, so as to read as follows: § 133. Every pleading must be subscribed by the party, or his attorney, and the complaint, answer and reply, must be verified by the party, his agent or attorney, to the effect that he believes it to be true. verification must be made, by the affidavit of the party, or, if there be several parties united in interest and pleading together, then by one at least of such parties, if such party be within the state and capable of making the affidavit; otherwise the affidavit may be made by the agent or attorney of the party. The affidavit may also be made by the agent or attorney, if the action or defence be founded upon a written instrument for the payment of money only, and such instrument be in the possession of the agent or attorney, or if all the material allegations of the pleading be within the personal knowledge of the agent or attorney. When the affidavit is made by the agent or attorney, it must set forth the reason of his making it.

The verification may be omitted, when an admission of the truth of the complaint might subject the party to prosecution, for an infamous crime. And no pleading, verified as herein required, shall be used in a criminal prosecution against the party, as proof of a fact admitted or alleged in such pleading.

The purpose of this amendment is obvious. The commissioners regret, that a more stringent rule in respect to the verification of pleadings is required, but they have reason to believe, that the spirit of the code in this respect has not been always regarded. The present amendment will probably answer its purpose. If it should not, it may then become necessary to make the affidavit positive.

§ 16. Section 137 is amended, so as to read as follows:

§ 137. If irrelevant or redundant matter be inserted in a pleading, it may be stricken out, on motion of any person aggrieved thereby. And when the allegations of a pleading are so indefinite, or uncertain, that the precise nature of the charge or defence is not apparent, the court may require the pleading to be made definite and certain, by amendment.

To prevent an evasion of the rules of pleading, by indefinite or uncertain allegations.

§ 17. Section 149 is amended, so as to read as follows:

149. The court may, at any time, in furtherance of justice, and on such terms as may be proper, amend any pleading or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case or by conforming the pleading or proceeding to the facts proved. The court may likewise, in its discretion, allow an answer or reply to be made, after the time limited by this act, or by an order enlarging such time; and may also at all times relieve the parties from judgments, orders, or other proceedings, taken against them, through their mistake, inadvertence, surprise, or excusable neglect ; and may supply an omission, in any proceeding.

The original section was misprinted in some copies of the code, by omitting the part in italics in the first part of the amended section. This is now inserted.