dent of the state on the 16th January, judging from the facts alleged in the affidavit, unless it be that his residence was at Chester. Indeed, it appeared that he was a resident of Chester, or it did not appear that he was a resident of this state. If it appeared that he was not a resident of the state, the order was unauthorized under subdivision 2 of section 135 of the Code: and if it appeared that he was a resident of this state, it further appeared that he was a resident of Chester, and then the order was defective in not directing service of the summons and complaint by mail. It follows from the above conclusions that the judgment against Benham was without jurisdiction and void; and of course the plaintiff obtained no title to the premises by his purchase under it.

In Warren agt. Tiffany, 17 How., 108, S. C., 9 Abb., 69, Special Term, September, 1858, WELLES, J., said that the order for publication, and all the subsequent proceedings, including the judgment, were clearly irregular, and must be set aside. The affidavits did not show a case for commencing the action by publication, and for that reason the order was unwarranted. In case evidence had been given showing that the defendant's absence was with intent to defraud his creditors, or to avoid the service of a summons, it should have directed 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 so was a fatal irregularity.

In Hyatt agt. Wagenright, 18 How., 248, Special Term, December, 1859, BALCOM, J., said, that the order presented is printed, but it is defective, as many that have been printed are. It states that a copy of the summons and complaint be deposited in the post-office, addressed to the defendant-and that is all. It should read that a copy be forthwith deposited, &c., for that is the language of this section of the Code (sub. 5); and it should also state that it be directed to the defendant, at his residence, naming it, if it is known. The judge said: The Code requires that the order for the publication of the summons "must 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." (§ 135, sub. 5.) The affidavits in this case do not show the residence of the defendant or that it is neither known to the plaintiff, nor can, with reasonable diligence, be ascertained by him. Which facts they must show before I can grant the order applied for. The order presented is printed, but it is defective, as many that have been printed are. It states that a copy of the summons and complaint be deposited in the post-office, addressed to the defendant-and that is all. It should read that a copy be forthwith deposited, &c., for that is the language of the Code (§ 135, sub. 5); and it should also state that it be directed to the defendant, at his residence, naming it, if it is known.

17. Q. Can service by publication be made upon unknown owners in actions for partition?

A. In Allen agt. Allen and others, 11 How., 277, Special Term, October, 1854, HARRIS, J., it was decided, that in an action for partition, in which the plaintiff is obliged to make "unknown owners" defendants, he is entitled to proceed by publication under this section of the Code, where a proper designation of those parties are given. The judge said: When this application was presented, 1 had great doubts whether it could be brought within the provisions of the Code. But, upon further consideration, I am satisfied that the plaintiff is entitled to the usual order authorized by the 135th section. Besides the three who reside in Arkansas, the other defendants are really "unknown owners." Thomas Allen has not been heard from in more than twenty years, and is probably dead. Who the persons are who have succeeded to his interest in the lands, the plaintiff has been unable to ascertain. It was very well, instead of proceeding against unknown owners" merely, in respect to the interest which would have belonged to Thomas Allen, if living, to state that the proceeding was against "Thomas Allen and his wife and children, and others, owners unknown." But, in effect, it is a proceeding against "unknown owners." The question, therefore, is, whether, in an action for partition, in which the plaintiff is obliged to make unknown owners defendants, he is to proceed against them in the manner prescribed by the 135th section of the Code, or, regarding the case as one not provided for by that act, is to pursue the practice as it existed at the time of the adoption of the Code. By the 175th section of the Code it is provided, that "when the plaintiff shall be ignorant of the name of a defendant, such defendant may be designated by any name." Here the plaintiff, being thus ignorant, has designated the persons who are proper parties defendant in the action as Thomas Allen and his wife and children, and others, owners unknown." This, I suppose, is a sufficient designation. It indicates as clearly as possible who are the parties intended. It also appears that the persons thus intended have an interest in the subject of the action, and thus the case is brought within the 4th subdivision of the 135th section. An order must, therefore, be entered, directing that service of the summons in this action be made upon all defendants therein, by the publication thereof in the Albany Evening Journal and the Democratic Freeman, once in each week, for twelve weeks, and all that

a copy of the summons and complaint be forthwith deposited in the post office at Hudson, directed to each of the defendants residing in Arkansas.

18. Q. Is a judgment recovered against a non-resident by service of summons by publica. tion, as conclusive as if service had been made personally?

A. In Fiske agt. Anderson, 33 Barb., 71, S. C., 12 Abb., 8, General Term, November, 1860, BONNEY, J., it was decided, that whether or not a judgment recovered against a non-resident défendant 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 of the summons had been made on the defendant within this state. (Quere.) The Judge said: The important question to be decided in this case is, whether or not a judgment, recovered against a non-resident defendant, on service of summons by publication pur suant to the Code, is conclusive and effectual for all purposes and to the same extent as if personal service of the summons had been made on the defendant within this state The Code provides (§ 134) for the service of a summons on a defendant within this state, and (by § 135) that when a defendant cannot, after due diligence, be found within the state, and that fact appears by affidavit to the satisfaction of the court or judge, and it, in like manner, appears that a cause of action exists against the defendant, 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 service be made by publication of the summons "where the defendant is not a resident of this state, but has property therein, and the court has jurisdiction of the subject of the action;" that 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; and that the defendant against whom publication is asked, 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) upon good cause shown may 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 defense be successful, and any part of the judgment has been collected, may have restitution awarded. It has been considered well settled law, that jurisdiction of the person of a defendant could not be obtained by any court, except by his voluntary appearance or by due service of process, and that effectual service of process could not be made on any person beyond the jurisdiction of the court out of which the process issued. (Fenton agt. Garlick, 8 John., 194; Andrews agt. Herriot, 4 Cowen, 524, in note.) By the section of the Code above referred to, personal service of summons and complaint out of this state is only made equivalent to publication and deposit in the post-office, and it can have no greater effect. The Code also provides (§ 227) that in an action for the recovery of money against a non-resident defendant the property of such defendant may be attached as security for the satisfaction of such judgment as the plaintiff may recover. And (§ 237) in case judgment be entered for the plaintiff in such action, that the sheriff shall satisfy the same out of the property attached, in the manner by the Code directed. These provisions of the Code afford, as I think, some ground for the position taken by the defendant in this suit, that it was the intent of the legislature to make a judgment obtained upon substituted service of summons by publication effectual only against property of the defendant which was within the jurisdiction of the court when the action was commenced or while it was pending, and which was or might have been seized under attachment therein. But I do not deem it necessary now to express an opinion on this very important point. The judgment in this case, as I think, should be reversed, and a new trial ordered on another ground.

In Force agt. Gower, 23 How., 294, N. Y. C. P., General Term, June, 1862, DALY, J., it was decided, that 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. Consequently the defendant cannot be sued upon the judgment, in another court. ( See also Kane agt. Cook, 8 Cal., 449.) The Judge said: A judgment against a non-resident can be recovered by a publication of the summons, only where he has property in the state, a restriction that indicates very plainly that the judgment recovered in this mode, is limited in its effect to the property which the defendant has in this state. If it were not so, if the legislature intended to authorize the recovery of a judgment in this way against a non-resident, which should have all the effect of a judgment in personam, there would have been no occasion for this restriction. Three things are essential to give the court jurisdiction: first, that the defendant is a non-resident; seeond, that he has property here; and third, that he could not, after due diligence, be found within the state-which, taken together, show that the design was to enable a person who has a cause of action against a non-resident, whom he cannot serve with process, to obtain the satisfaction of his claim out of the property of the non-resident situated here. For this purpose he is permitted to recover a judgment, by the service of the summons by publication, and by the deposit of a copy of it, directed to the defendant, if his residence is known, under which the plaintiff may reach by execution any property of the defendant in this state. Provision is made for allowing the defendant to defend after judgment, and if the defense is successful, and the judgment, or any part of it, has been collected, empowering the

court to compel restitution. These provisions denote the nature of the judgment, that it does not possess the exclusive character of judgments founded upon personal service of process. It does not, like the latter, import absolute verity, or that it is a conclusive adjudication of the rights of the parties, inasmuch as the law creating it contemplates that it may be questioned and a defense made to it, under certain conditions for the space of seven years. A judgment founded upon personal service of process, on the contrary, becomes an absolute debt of record, and as such may be recovered upon in any state of the union by proving the judgment. If the defendant had notice, it is conclusive upon the merits, Evan agt. Taten, 9 S. & R., 260;) but if he had not, it is of no validity whatever out of the state where it was rendered. (See cases collected in Oakley agt. Aspin. wall, 4 Comst., 521.) It is even very doubtful whether the legislature could confer authority to enter a judgment which should have the effect, within the limits of the state, of a judgment in personam, in a case where the defendant is not brought into court by actual notice of its process. (Mervin agt. Kumbell, 23 Wend., 293.) "It is against a first principle of justice," says BRONSON, Justice, in the case last cited, "to hold a man concluded by a judgment when he had no opportunity of answering in the original action." Under the old joint debtor act (1 R. Lows of 1813, 521, § 13), if the process was served upon one, the judgment was entered as if all had been brought into court, but execution could not issue against the person or seperate property of those not served. Under this act it was held that an action might be brought upon the judgment, and that it was prima facie evidence of the joint indebtedness, but that a defendant, not originally brought into court, might avail himself of any defense which it would have been competent for him to urge in the original action, and if he put the fact of his indebtedness in issue, it was incuinbent upon the plaintiff to establish it, and not upon the defendant to disprove it. (Town send agt. Carman, 6 Wend., 206; id., 6 Cow., 693.) But that is a different case from this. Here the right to enter judgment against the defendant not personally served with pro cess, is limited to cases in which he has property in the state, and the law conferring the right has provided the mode in which he is to be allowed to defend after judgment, that is, by applying to the court in which it was rendered. That court may allow him to defend at any time within one year after notice of the judgment, or after judgment, upon good cause shown, or within seven years after its rendition, upon such terms as may be just. The existence of the provision satisfies me, that it was not the intention that the defendant might be sued upon this judgment in another court, or that it was intended to have any other operation or effect than to reach the property of the non-resident situated in this state.

What is the result of the decisions under this section?

1. (3 Q.) A plaintiff to be entitled to an order pro confesso, against a non-resident debtor who has not appeared, must strictly pursue the course prescribed by statute.

2. The admission of service of summons by parties defendants residing out of the state, is ineffectual as the basis of any judicial proceeding in personam in this state.

2. Whether personal service of a copy of the summons and complaint out of this state (under this section), confers any jurisdiction on the court whatever in any case. Quere?

3. The provisions of the Code for the recovery of judgment upon service of the summons, by publication and deposit in the post-office, directed to the person to be served, at his place of residence, are new, and the statute must be strictly complied with, to confer jurisdiction.

4. The record of judgment did not show jurisdiction on its face where it was entered by the clerk, against a non-resident defendant, by default upon service by publication, and where the printer's affidavit did not show six weeks' publication, in pursuance of the judge's order, and where it did not contain any proof that the summons and complaint were deposited in the post-office, directed to the defendants, at their place of residence, or that such residence was either unknown to the plaintiff or could not with rea sonable diligence be ascertained by him, and where the affidavit for the order of publication, formed no part of the record.

5. Jurisdiction in cases where judgment by default is entered against a non-resident debtor, should be shown, as they are in the nature of special proceedings, and nothing can be intended in their favor.

6. All records of judgment should show jurisdiction of the person.

7. The clerk has not authority to enter judgment by default against a non-resident defendant, where the summons was published, such judgment could only be entered by special order of the court; his authority to enter judgment only exists where the summons has been personally served.

8. This section states that "in all cases where publication is made, the complaint must first be filed, and the summons as published must state the time and place of such filing." These are jurisdictional facts, and their omission in the summons as published, although contained in the notice following it, is fatal to the judgment.

9. The statutory proceedings for acquiring jurisdiction of absent defendants, must be strictly complied with in order to give the court jurisdiction.

10. Jurisdiction in actions commenced by publication of summons, is strictly statutory, and can be acquired only in the mode prescribed by the statute.

11. If a judge errs in his decision, where the affidavits on an application for an order of publication, tending to establish the requisite jurisdictional facts to authorize him to make the order, it is a judicial error, which may be reviewed and rectified upon appeal, or on motion to set aside the order, but cannot be questioned in a collateral proceeding. 12. If a judge errs in his decision in passing upon the force of affidavits and the weight of evidence, for an order of publication, it is a judicial error, and the order will not be void, but simply irregular and erroneous.

13. (4 Q.) 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 or his attorney.

13. It seems the act of April 12th, 1842, ch. 277, p. 363, is still in force, and its provisions made applicable by ý 368 of the Code.

14. (6 Q.) A complaint need not be published in an order of publication against an absent defendant.

15. A summons served by publication which mistates the day of the month on which the complaint was filed, is not an irregularity which affects the judgment.

16. A motion to set aside a judgment, taken by default on a service of summons by publication, on the ground that the complaint was filed on the 22d of the month, while the summons, dated and published on the 23d, stated that the complaint has been this day filed, was denied on the ground that as the complaint was on file on the 23d, although actually filed on the 22d, it was a sufficient compliance with the statute.

17. Service of summons by publication is insufficient unless the complaint be filed before publication, and the summons, as published, state the time and place of such filing.

18. A judgment entered upon a service of summons by publication, when the complaint was not filed, is a nullity, and it is not aided by § 139, and the fact that an attachment was issued in the proceeding. A subsequent order for the filing of the complaint nunc pro tunc, as of the day the summons was first published, will not give vitality to such a judgment.

19. Where a legal notice is required to be published for ten weeks before a proceeding can be had thereon, a publication, though in each of ten consecutive weeks, is not suffi cient if the time between the first publication and the proceeding taken, is less than seventy days.

20. A sheriff's deed gives no title to property sold on execution, where the notice of sale, though posted forty-three days previous to the day of sale, is published only thirtynine days previous to the sale.

21. It is sufficient notice of a sale of real estate upon execution to post a notice thereof forty-two days previous to the sale, and publish a copy thereof in six successive numbers of a weekly newspaper, although the first publication may be less than six weeks prior to the sale.

22. Foreclosure notices, notices of sheriff's sales on execution, or by order of the court, and all other notices required by law or in the course of legal proceedings to be published in the county of Hamilton, may be published in a paper printed and published in the county of Fulton, with the same effect as if published in the county of Hamilton. 23. All legal notices, among which are included summonses, which should be published in the county of Hamilton, are directed by law to be published in the county of Fulton, with the same effect.

24. (7 Q.) Where an order for service of summons and complaint by publication has been made, on its appearing to the satisfaction of the justice that the necessary facts were stated, such order should not be set aside at special term for irregularity, although it might seem that the evidence upon which it was granted was very slight.

25. (8 Q.) An affidavit for an order for publication, against an absent defendant, should state that a summons and complaint have been made out, and due diligence used to serve the same, without success, and also that a cause of action exists, and that the defendant is a resident of the state, or has property therein.

26. The statute does not expressly require the filing of the affidavits upon which an order for publication is granted in case of a non-resident defendant.

26). Where the affidavits filed for publication, in the case of a non resident defendant, are defective, and it appears there was another sufficient affidavit used on procuring the order, which had not been filed, the order will be considered sufficient.

264. The fact of non-residence is evidence that the defendant cannot, after due diligence, be found within this state.

27. Where an affidavit states the belief of the deponent that the defendant keeps out of the way to avoid personal service, the facts on which such belief is grounded must be stated, and the court must be satisfied that the belief is well founded.

28. The court will not be satisfied that the belief is well founded, where the only evidence of the defendant's keeping out of the way with a fraudulent intent, is an affidavit of the sheriff, "that after the summons was put into his hands to be served, he went to the defendant's residence, and was then informed by his family, and other persons residing near the residence of the defendant, that he had been absent from home since about the first of November previous (then May, 1858), and had not since been home; that when last heard from he was in the city of Nashville, in the state of Tennessee, and that deponent believes that said defendant is absent from the state of New York for the purpose of defrauding his creditors."

29. An affidavit for an order for publication must show the residence of the defendant, or that it is neither known to the plaintiff, nor can with reasonable diligence be ascertained by him.

30. An affidavit for an order of publication, which stated "that, after due and diligent search and inquiry by this deponent, that the defendants cannot be found in the state of New York, as he is informed and verily believes," is sufficient to satisfy the judge legally of their non-residence, and to confer jurisdiction upon him to make the order.

31. An affidavit for an order of publication must not only show the existence of a cause of action, and that the defendant cannot, after due diligence, be found within the state; but it must further appear, when the application is under subdivision two of this section, that, being a resident of the state, the defendant has departed therefrom with intent to defraud his creditors, or avoid the service of a summons, or keeps himself concealed therein with the like intent.

32. To establish an intent to defraud creditors, the affidavit for an order of publication, must show that the defendant has property of some kind, and that he has made, or is about to make, a fraudulent or illegal disposition of it; or that he unjustly refuses to apply it to the payment of his debts, or has secreted or removed, or is about to secrete or remove it, or has fraudulently incumbered it.

33. To authorize an order for publication against an absconding debtor, the affidavit must furnish proof of the intent to depart from the state to avoid service of summons.