Where the action is against husband and wife it is presumed by analogy to the late equity practice, that service on the husband alone would be good service on both. Unless relief be asked out of the separate estate of the wife, in which case she must be served. Ferguson v. Smith, 2 John. Ch. .R, 139. Leavitt v. Cruger, 1 Paige, 421. Jones v. Harris, 9 Ves. 488. Where, however, no personal claim is made against a wife who is sued jointly with her husband, it may be advisable to serve her with a summons and a notice of no personal claim under section 131. It was held not to be irregular to serve a subpoena in chancery, personally upon a defendant imprisoned in the State prison for a term of years on a conviction for a crime. Phelps v. Phelps, 7 Paige, 150. But an order might have been obtained for service on the keeper of the prison to be good service on the defendant. 1 Dan. Ch. Pr., 566. Joyce v. Joyce, 1 Hogan, 121. When the United States or any individual State, was a defendant, the proper person to be served was the district-attorney or the attorney-general, and in case of failure to appear in due time, an order would be granted for an appearance in a certain time, or that the bill be taken pro confesso.

It is presumed that the like practice will be adopted in reference to the service of the summons under the code in similar cases; except that in the case of the United States or an individual State being a defendant, probably under the present practice, the complaint would be taken as admitted without any order for the purpose.

Where under the former practice in chancery, a defendant was so infirm in body and mind, as to be incapable of putting in an answer, or where the defendant was deaf and dumb, the plaintiff or any other person might on notice to the relatives of the defendant and the persons with whom he resided, procure the appointment of a guardian for such defendant. Wilson v. Grace, 14 Ves. 172. Gason v. Garnier, Dick. 286. Markle v. Markle, 4 John. Ch. R., 168.

The summons must be delivered to, and left with the defendant, supreme court rules in appendix rule, 90. And a mere manual delivery of the summons is not good service, unless the summons be left with the defendant. Thus where a defendant was served with a summons and after reading or examining same, voluntarily handed it back to the person who had served it, and such person received it back without informing the defendant that he had a right to retain same, and the plaintiff afterwards entered up judgment for default of an answer, the court on the defendant's motion set aside the judgment with costs. Beekman v. Cutter, 2 Code Rep. 51. And see note to section 138 of this code.

The service of the summons must, except in the cases provided for in the next section, be within the territorial jurisdiction of the court. Dunn v. Dunn, 4 Paige's Rep., 425. Litchfield v. Burwell, 5 Pr. R., 341.

§ 135. [114.] (Amended.)-Service by publication.—Where a person, on whom the service of the summons is to be made, cannot, after due diligence, be found within the State, and that fact appears by affidavit to the satisfaction of the court, or a judge thereof, or the county judge of the county where the trial is to be had, and it in like manner appears that a cause of action exists against the defendant, in respect to whom the service is to be made, or that he is a proper party to an action relating to real property in this State, 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 foreign corporation, and has property within the State, or the cause of action arose therein:

2. Where the defendant, being a resident of this State, has departed therefrom with intent to defraud his creditors, or to

avoid the service of the summons, or keeps himself concealed therein with the like intent: **

3. Where he is not a resident of this State, but has property therein, and the action arises on contract, and the court has jurisdiction of the subject of the action :

4. Where the subject of the action is real or personal 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 or lien therein :

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

The order must 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 may be deemed reasonable, not less than once a week for six weeks. In case of publication the court or judge must also direct a copy of the summons and complaint 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 reasonable diligence be ascertained by him. When publication is ordered, personal service of a copy of the summons and complaint, out of the State, is equivalent to publication and deposit in the post-office :

"The defendant against whom publication is ordered," or his representatives, on application and sufficient cause shown at any time before judgment, must be allowed to defend the action; and except in an action for divorce, the defendant against whom publication is ordered, or his representatives, may in like manner, upon good cause shown, 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 may be just ;*** and if the defence be successful, and the judgment or any part thereof, have been collected, or otherwise enforced, such restitution may thereupon be compelled as the court directs; but the title to property sold under such judgment to a purchaser in good faith shall not be thereby

affected. And in all cases where publication is made the complaint must be first filed, and the summons, as published, must state the time and place of such filing.

All the parts in italic are new. All the words between inverted commas are substituted for other words; thus, in subdivision three, in the original section, the words were "a non-resident," instead of "not a resident of this State," and in subdivision six, the words in the original were "in this section" instead of "by law,” and the words "The defendant against whom publication is ordered," instead of "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." Where one asterisk is placed, the words "necessary or" are omitted, and where two asterisks are placed, the words "and the action arises out of contract, or the non-feasance or mis-feasance complained of is a breach of contract," are omitted, and where three asterisks are placed, the words "except in actions for divorce" are omitted. The present subdivision 5 was subdivision 6 before amend. ment, and the former subdivison 5 which was in these words, "where the action is founded on a mortgage on property in this State, and the defendant is personally chargeable with the debt for which the mortgage is a security" is omitted.

Upon a motion for service of a summons by publication, where the sheriff alleged that he was unable to serve the summons personally, that he was fastened out of defendant's house when he went to make the service, that before arriving at the house notice was given of his apprcach by the blowing of horns, that after he left the defendant's house the blowing of horns continued, and soon the defendant appeared following him on horseback blowing a horn, but kept too far off to enable him to serve the summons; he, however, got near enough to defendant to inform him he had a summous for him, but was not able to come up with defendant, who rode out of sight; that whenever he went into defendant's neighborhood notice thereof was invariably given by blowing horns, held, that the case did not come within the provisions of this section. It could not be said that the defendant could not be found and kept concealed. Van Rensselaer v. Dunbar, 4 Pr. R., 151.

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. Hulbert v. Hope Mutual Ins. Co., 4 Pr. R., 275, 278.

It seems that an order for service by publication, may be obtained against an infant defendant who is an absentee or concealed. Mortimer v. Copsey, 1 Hoff. Ch. Pr. 194. 1 Barb. Ch. R. 51. And that at the expiration of the time to answer, if the infant has not appeared and a guardian been appointed, the plaintiff may appoint a guardian and take judgment. Ontario Bank v. Strong, 2 Paige, 301; and a similar course may be pursued where the defendant is a non-resident lunatic. v. Wells, 1 Hoff. Ch. Pr., 194.

The affidavit to obtain an order for publication should show.

1. That a summons and complaint have been made out.

Otis

2. That due diligence to serve the same has been used without success. Probably showing that the defendant is not in the State would be sufficient, for that shows there can be no service within the State.

3. That a cause of action exists, or, that the defendant is a proper party to an action relating to real property in this State.

4. That the case is one of those mentioned in subdivisions 1 to 6 inclusive.

The order should recite the summons or refer to it as being annexed; so that the order may show there was a summons and identify it. Rawdon v. Corbin, 3 Pr. R., 416, 2 Code Rep., 3. Vernam v. Holbrook, 5 Pr. R., 3; and 1 Code Rep., 13.

If the action be against a foreign corporation, the affidavit should state the place of the institution of such corporation, and that no officer &c., on whom service could be made can be found within this State. 1 Barb Ch. Pr., 96.

And an affidavit which stated: That the said defendant "has property within the State of New-York, as this deponent has been informed and believes, that the said defendant is as this deponent has been informed and believes interested in, and has an interest in real estate in the county of Albany, and in other counties in said

State of New-York," was held defective in not showing that that defendant had property within the State of New-York and per the court, Parker J., "It is not enough to state this on information and belief. That is no proof of the fact. A person may give such testimony who has no personal knowledge on the subject. Mere hearsay and belief founded on it are not evidence.

In Ex parte Haynes (18 Wend. 611,) an attachment had been issued on an affidavit in which the witnesses stated that they were informed and believed, that the debtor was a non-resident; but the supreme court held the affidavit insufficient, and set aside the attachment. See also Smith v. Luce, 14 Wend. 637. Ex parte Robinson, 20 Wend. 672. Kingsland v. Coleman, 5 Hill, 611. In re Bliss, 7 Hill, 187. Thatcher v. Powell, 6 Wheaton R., 119. Williamson v. Doe, 7 Blachf. R. 12. In re Faulkner, 4 Hill, 598. Brisbane v. Peabody, 3 Pr. R., 109.

It will appear by these cases, how careful the courts have been to see that the statute is strictly complied with, in proceedings which subject property to seizure and sale, without a personal service of process on the owner. The duty to protect against injustice is certainly none the less obligatory under the code, which authorizes 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 Everston v. Thomas, 3 Code Rep., 74, 5 Pr. R., 45, 46.

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.

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., 341-346. 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 summons 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, 277. 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 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 jurisrisdiction 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 sitæ, property of such person 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 305-6, and cases cited. 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, publication, 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.

$136. [115.] (Amended.)-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 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 amendment is struck out; "when an order shall be made extending the time to answer beyond 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. Kimbal, 23 Wend., 293.