the recording of judgment in so many cases on a mere publication of notice, substituted in place of personal service. "The practitioner will find it necessary to be exceedingly careful that the affidavits on which he proceeds are in conformity to the requirements of the statute, if he will secure a valid judgment." Everts or Evertson v. Thomas, 3 Code Rep., 74; 5 Pr. R., 45, 46. The order for publication should be filed with the clerk of the court; and such order, with the affidavits of due publication, &c., should form part of the judgment roll. See bearing on this subject. Saffuronis v. Terry, 12 Sme. & M., 690. The code does not expressly require the affidavit on which the order is obtained to be filed, nor does it provide what is to be done with it. It is the practice, either to leave it with the judge or file it. Ib. And where two affidavits were filed which were not sufficient to authorize the order, but on a motion to set aside the order a third affidavit was produced which the court was satisfied had been used on the application for the order, and which supplied the defects in the affidavits on file, the court denied a motion to set aside the order. Ib. The complaint need not to be published in cases where service of the summons is ordered to be by publication, but the summons is to state when and where the complaint was filed. Anon. 1 Code Rep., 102; 3 Pr. R., 293. As to how the time for publication is to be computed, see section 425 of this code. A statute required the order for publication to be published for 4 weeks successively, and where an affidavit of publication stated that "the order for publication had been published in the county for four weeks successively, once every week, commencing on the 24th day of April last, and ending on the 5th of May," (a period less than 4 weeks), it was held that the statement that the publication had been made for four weeks successively was a compliance with the terms of the statute, and was as much as was required; and that the subsequent part of the affidavit was mere surplusage, and in all probability was a mistake, and did not vitiate the previous part. Swayze v. Doe, 13 Sme. & M., 317. Where an order is made for service of a summons by publication, the defendant has until twenty days after the expiration of the time prescribed for publication to put in his answer. Tomlinson v. Van Vecthen, 1 Code Rep. N. S., 317. And in cases where service by publication is ordered, and the summons is personally served out of the State, there the defendant has twenty days time to answer after the expiration of the time prescribed in the order for publication; because such personal service, out of the State, is only equivalent to the publication of the summons, and the deposit of a copy of the summons and complaint in the post office. Ib. Proceedings may be had against a defendant, when his last known place of residence was within this State but his residence at the time cannot on due inquiry be ascertained by the plaintiff. Close v. Van Heusen, 6 Pr. R., 157. 1 Code Rep. N. S., 408. Thus where the defendant was an infant, whose last known place of residence was in this State but whose then present residence could not be ascertained, and she could not be found to be served with process, Willard, J., said, "This case does not fall within any of the provisions of the 135th section of the code, nor of the revised statutes (2 R. S., 186, s. 122). Some of the embarrassments in cases where the residence of a defendant could not be found, occurred in Jermain vs. Langdon (8 Paige, 41), and in Evarts vs. Becker (8 id., 506); and it is probable that these and similar cases led to the passing of the act of April, 1842 (Laws of 1842, p. 363). By the first section of which act the following subdivision was directed to be added to the 122d section of 2 R. S., 186. "3. Where the last known place of residence was within this State, but his residence at the time cannot on due inquiry, be ascertained by the complainant or his solicitor." The case of the defendant falls exactly within this subdivision; and if the latter is still in force, the course to be adopted by the plaintiff, is sufficiently obvious. By force of the constitution of 1846, and the judiciary act of 1847, the powers and jurisdiction of the court of chancery were vested in the supreme court. There can be no doubt, therefore, that at and before the time of the adoption of the code, the act of April 1842 was in full operation. The 468th section of the code repeals all statutory provisions inconsistent with the code, and expressly enacts that if a case shall arise, in which an action for the enforcement or protection of a right, or the redress or prevention of a wrong, cannot be had under that act, the practice theretofore in use, might be adopted as far as might be necessary to prevent a failure of justice. The first section of the act of 1842, supra, is not inconsistent with any provision of the code. It supplies an omission without which the code is defective. If both are permitted to stand, the system is harmonious, and there will be no failure of justice in a case like the present. "The plaintiff should present his application by petition, bringing his case within the 135th section of the code so far as form is concerned, and the first section of the act of 1842. The publication of the order should be in two newspapers, to be designated as most likely to give notice to the persons to be served, and for a period of three months." The provision of the revised statutes to which reference is made in the above case is as follows: 2 Rev. Stat., 2d ed. 113, as amended by laws of 1842, p. 363. After the filing of a bill, the court shall make an order for the appearance of the defendant at a future day, therein to be specified as hereinafter directed, in the following cases: 1. When the defendant resides out of the State, upon proof by affidavit of that fact. 2. When the defendant is a resident of the State, upon proof by affidavit that process for his appearance has been duly issued, and that the same could not be served, by reason of his absence from or concealment within the State, or by reason of his continued absence from the place of his residence. 3. When the last known place of residence was within this State, but his residence at the time cannot on due inquiry be ascertained by the complainant or his solicitor. The order shall require the defendant to appear and answer the bill, as follows: 1. If he be a resident of the State, within two months from its date. 2. If his last known place of residence was in this State, but his present place of residence cannot, on due inquiry, be ascertained, or if he be a resident of some other of the United States, or of one of the Territories thereof, or of either of the British Provinces in North America, or the Republic of Texas, within three months from its date. 3. If he be a resident of any other State or country not before mentioned, within six months from its date. Within twenty days from the date of such order, a notice thereof shall be inserted in the State paper, and in such other public newspaper printed in this State as the court shall direct. Such publication shall be continued in each of such papers once at least in each week for three weeks in succession; which notice shall be substantially in the following form: "Before the chancellor," or, "Before the vice-chancellor of the circuit," as the case may be, "A. B. v. C. D. and others. Bill for the foreclosure of a mortgage," or, "Bill for partition of lands," or as the case may be. "E. F., of complainant's solicitor. "G. H., one of the defendants in this cause, whose place of residence is in or, whose place of residence is unknown, is required to appear in this cause by the day of next, or the bill filed therein will be taken as confessed by him." But such publication shall not be necessary, provided a copy of such order shall have been served on such defendant personally, at least twenty days before the time prescribed for the appearance of such defendant. It seems that in all cases where it is sought to affect property in this State, and the defendant resides out of the State, an order for publication must be obtained, although the defendant may be willing to accept service out of the State. Litchfield v. Burwell, 5 Pr. R., 341; 1 Code Rep., N. S., 42. Service of the process out of the territorial jurisdiction of the court from which it issued was at common law a nullity; and service of the process of our courts on defendants out of this State is inefficacious as the basis of any judicial proceedings in personam, per Sill, J., in Litchfield v. Burwell, supra; and in the late court of chancery it was held that the service of a subpoena to appear and answer, upon a defendant out of the State, was irregular. Dunn v. Dunn, 4 Paige's Rep., 425. Has the amendment to section 139, providing that a voluntary appearance is equivalent to personal service of the summons, affected this point? It is believed that it has not. By a clause of the 6th subdivision of section 135, before amendment, it was provided that, when publication is ordered, and a copy of the summons is not personally served on the defendant, nor received by such defendant, "he may defend the action after judgment in certain cases; but this privilege was not extended to absent defendants, who receive a copy of the sum mons out of this State; and the terms of this provision do not, in any case, limit or qualify the effect of the judgment, unless the defendants shall come in and submit to the jurisdiction of the court, per Sill, J., in Hulbert v. Hope Mutual Ins. Co., 4 Pr. R., 275. But by the amendment to this part of this section, it seems that in all cases where publication is ordered, the defendant or his representatives may be allowed to come in and defend, on good cause shown therefor. The codifiers, in reporting this section observed that, "In suits at common law, personal service had been theretofore required, while in suits in equity an advertisement had been allowed against absent defendants, when personal service could not be made; and that they saw no reason why the rule prevailing in equity cases should not be extended to all. Such a rule prevails in several of the States." The extra-territorial effect of a judgment or decree in personam, against a nonresident, and not served with process, within the jurisdiction of the court, or who does not appear voluntarily, is regarded by the State courts as inoperative out of the State, or purely local. By the lex loci rei sita, property of such persons may be made subject to the jurisdiction, so as to render the judgment or decree binding, as a proceeding in rem; but it will not be allowed to operate in personam in the courts of any other State. The question has been decided the same way in nearly half the States of the Union; and probably no court of any State has held such a proceeding conclusive upon the rights of a party proceeded against, who has not appeared, or otherwise submitted his rights to the decision of the court in which such proceedings were instituted. Bates v. Delavan, 5 Paige, 305. But in this and some other States (24 Pick., 412), provision is made by the legislation and rules of court, authorizing, in lieu of actual service of process on parties beyond its jurisdiction, publi. cation, or personal service of an order to appear and answer, and, in default, that the bill be taken as confessed as to unknown persons having an interest in the subject matter in certain cases. See Laws of 1831, p. 243. Hudson v. Twining, 1 Taml., 315. Ely v. Broughton, Sim. and S., 188. On the taxation of costs, only the statute rate of payment will be allowed for the publication of the summons. The Courier and Enquirer and the Evening Post, in the city of New York, will advertise at the statute rates. Other newspapers, so far as our knowledge extends, will only advertise at their usual scale of charges, ordinarily much higher than the statute allows. § 136. [115.] (Amended 1849, 1851.) Joint and several debtors. Proceedings against.-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 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. By the amendment of 1851 this section is modified so as to explain the course of proceeding without reference to the former law. (2 R. S.. 3d ed., 474, s. 1). The part in italic is new; where the asterisk is placed, the words "in the same manner as at present, and with the like effect," are omitted, and the following clause, which was in the section prior to the last amendment, is struck out: "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." This section was substituted for section 115 in the code of 1848, but differed materially from it, in its form and effect. The section in the code of 1848 was held not to affect 2 R. S., 377, relating to proceedings against joint debtors. Sterne v. Bentley, 3 Pr. R., 331; 1 Code Rep., 109. It has been said that the only advantage gained by the plaintiff in the recovery of his judgment, is the right to collect from the joint property of the defendants, and in a suit on the judgment to make it evidence of the extent of his demand: it does not form any bar to the running of the statute of limitations. Vandenberg v. Biggs, 3 Pr. R., 316. Carman v. Townsend, 6 Wend., 206. Mervin v. Kimball, 23 Wend., 293. See, however, section 100, as now worded. See further provisions on this subject in section 375 of this code. In Mechanics' and Farmers' Bank v. Rider, 5 Pr. R., 401, Mr. Justice Parker says, p. 413. 'Both defendants (jointly liable) were served, and the contract being joint and not several also, the plaintiff would not have been entitled to judgment against either of the defendants if the action had been commenced against one of the defendants alone. He cannot, therefore, take judgment against one, when they are sued together." The other statutory enactments on this subject still in force are 2 R. S, 3d ed., p. 474; Laws of 1835, p. 248, s. 2, and Laws of 1837, p. 537. By the revised statutes it is enacted : "1. In actions against two or more persons jointly indebted upon any joint obligation, contract, or liability, if the process issued against all the defendants shall have been duly served upon either of them, the defendant so served shall answer to the plaintiff; and in such case, the judgment, if rendered in favor of the plaintiff, shall be against all the defendants, in the same manner as if all had been served with process. "§ 2. Such judgment shall be conclusive evidence of the liability of the defendant who was personally served with process in the suit, or who appeared therein; but against every other defendant, it shall be evidence only of the extent of the plaintiff's demand, after the liability of such defendant shall have been established by other evidence. 66 "§ 3. Execution upon every such judgment shall be issued in form against all the defendants, but the attorney issuing the same shall indorse thereon the names of such of the defendants as were not served with the process by which the action was commenced, and shall direct such execution to be served, as provided in the next section. 66 "§ 4. Such execution shall not be served upon the person of any defendant whose name is so indorsed thereon; nor shall it be levied on the sole property of any such defendant; but it may be collected of the personal property of any such defendant, owned by him as a partner with the other defendants taken, or with any of them. "§ 5. Where an action against two or more persons upon any joint obligation, contract, or liability, shall be commenced by the filing and service of a declaration, and it shall appear by the certificate of a sheriff, or by due proof, that the same has been served upon either of such persons, the defendant so served shall answer to the plaintiff; and the judgment in such action, if rendered in favor of the plaintiff, shall be against all the defendants in the same manner as if all had been served with such declaration; which judgment shall have the like effect, and execution thereon shall be issued as if process against such defendants had been served on one of them." By laws of 1835, cap. 211, regulating actions on bills of exchange and promissory notes, it is enacted: 2. It shall not be necessary for the plaintiff (in an action against the several parties to a bill or note) to include in the same record a judgment against all the parties to said bill or note; but judgment may be entered against any of the parties to said bill or note, whenever the plaintiff would be entitled to the same if the suit had been commenced against such parties only. And if the trial or hearing of the cause be put off by any of the parties to the said bill or note, or if a default shall have been obtained against part of the defendants, the plaintiff may proceed to the trial or hearing against the other parties, in the same manner as if the suit had been commenced against the other parties only; and the action shall thereby be severed." This section of this code (sec. 136) appears to go further than the revised statutes, and to provide as wel! for one of several joint debtors, as for one of several defendants severally liable. Under the provisions of the revised statutes it was held, that, in actions against two or more jointly indebted upon any joint obligation or contract, where one or some only of the defendants had been served, the judgment, if for the plaintiff, must be against all the defendants. 5 Hill, 37. 10 Wend., 630. 6 ib., 500. Even if the defendant not served be an infant. 15 Wend., 64. 11 ib., 612. The judgment so obtained was conclusive evidence of the liability of the defendant or defendants served, or who appeared; but as against the defendant or defendants not served, or who did not appear, the judgment was evidence only of the extent of the liability of such defendant or defendants, after their liability had been established by other evidence. An action of debt might be brought on such judgment against such defendant or defendants. And in such action the plaintiff, on the plea of nul tiel record being interposed, had to prove the defendant's liability. 6 Wend., 206, 293, 23; 14 ib., 221. When a suit is brought against several heirs of a person dying intestate (under laws of 1837, p. 537), some being served with process and some not, held that a judgment in form could not be entered against those not served as against joint debtors. Kellogg v. Olmsted, 6 How. Pr., 487. Nor can they be summoned to show cause why they be not bound by the judgment, (under s. 375). Ibid. As to the execution on a judgment under the above provisions of the revised statutes, see notes to sections 289 and 291 of this code. § 137. [115.] (Amended 1849.) When service complete.—In the cases mentioned in section 135, the service of the summons shall be deemed complete at the expiration of the time prescribed by the order for publication. See McEwen's Ex'r v. Public Administrator, 3 Code Rep., 139, 176; 6 Pr R., 47. $138. [116.] (Amended 1851.) Proof of service.-Proof of the service of summons and of the complaint or notice, if any, accompanying the same, must be as follows. 1. If served by the sheriff, his certificate thereof; or, 3. In case of publication, the affidavit of the printer, or his foreman, or principal clerk, showing the same, and an affidavit of a deposit of a copy of the summons in the post-office, as required by law, if the same shall have been deposited; or, 4. The written admission of the defendant. In case of service, otherwise than by publication, the certifi |