is to partition real estate, or that no personal claim is made on the defendant against whom the order is sought.

a. The provisions of this statute of 1853 apply only to cases where the defendant cannot be found either in or out of the State, or being found, avoids or evades personal service (Collins v. Campfield, 9 How. 519; Foot v. Harris, 2 Abb. 454); therefore, where upon an affidavit that the defendant was a resident of this State, but that he was then in the State of Ohio, and not expected back that summer, except on a visit, an order was made for substituted service under this statute, the court on motion set aside such order as not warranted by the statute (Collins v. Campfield, supra; see Jones v. Derby, 1 Abb. 458). An order made under this statute should direct the substituted service to be made in manner prescribed; and if it direct any other mode of service, the order will be irregular (Foot v. Harris, supra).

Note to section 135.

7. Statute to be strictly pursued.—The requirements of the section must be strictly pursued and fully complied with in order to confer jurisdiction (Hallett v. Righters, 13 How. 43; Brisbane v. Peabody, 3 id. 109; Kendall v. Washburn, 14 id. 380; Titus v. Reylea, 16 id. 371; Cook v. Farren, 34 Barb. 95; 12 Abb. 359; 11 id. 40; Wortman v. Wortman, 17 Abb. 66). An order for publication, and all proceedings founded thereupon are absolute nullities, unless the case is in fact within this section. It is not sufficient that the affidavit on which the order is made states the case to be within, nor that the judge making the order is satisfied the case is within, this section (Fiske v. Anderson, 33 Barb. 71; 12 Abb. 8; Peck v. Cook, 41 Barb. 549). The affidavit must show the case is within the law (Peck v. Cook, 41 Barb. 549). The necessary facts cannot be shown in any other manner than by affidavit (Waffle v. Goble, 53 Barb. 517). When the judge has decided on sufficiency of the facts shown to confer jurisdiction, his decision cannot be questioned collaterally (Collins v. Ryan, 32 Barb. 647). But where there is a total absence of proof of the facts necessary to confer jurisdiction, the order for publication and all proceedings founded upon it are absolutely void (Towsley v. McDonald, 32 Barb. 604; Wells v. Thornton, 45 Barb. 390). And if the affidavit is insufficient, it will not be aided by the personal service of the summons out of the State (Peck v. Cook, 41 Barb. 549). Nor can jurisdiction be conferred nunc pro tune by amendment (Wortman v. Wortman, 17 Abb. 67; Hallett v. Righters, 13 How. 43).

c. Subd. 1.—To obtain an order in a case provided for by subd. 1, it must be proved 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 the State (Hurlbut v. Hope Mut. Ins. Co. 4 How. 278; Wortman v. Wortman, 17 Abb. 66; Irving Savings Institution v. Hardman, 17 Abb. 67, note); and the affidavit should mention the name of the State in which the defendants are incorporated (1 Barb. Ch. Pr. 96).

d. Subd. 2.-When the application is under subd. 2, the affidavit besides showing the existence of a cause of action, and that the defendant cannot after due diligence be found within the State, must also show that being a resident of the State, the defendant has departed therefrom with intent to defraud his creditors, or to avoid the service of the summons, or keeps himself concealed therein with a like intent (Towsley v. McDonald, 32 Barb. 604; Collins v. Ryan, 32 Barb. 647; Roche v. Ward, 7 How. 416). To establish an intent to defraud creditors, the affidavit must show defendant to have property, of which he is about to make a fraudulent or illegal disposition, or which he unjustly refuses to apply to the payment of his debts, or has secreted or removed, or is about to secrete or remove, or has fraudulently encumbered (id.) And to authorize an order on the ground of defendant's departure from the State with an intent to avoid service, the affidavit must furnish proof of such intent (id.)

e. Subd. 3.—It is not sufficient to allege that defendant has "property

within the State of New York, as deponent has been informed and believes" (Exertson v. Thomas, 5 How. 46). Property temporarily brought into the State, as a team merely to remove lumber, is not sufficient (Haight v. Husted, 5 Abb. 170).

a. Subd. 6.-In an action of foreclosure it is sufficient to show that the defendant upon whom service is to be made can not after due diligence be found in the State; it need not be shown that he is a non-resident (Barnard v. Heydrick, 2 Abb. N. S. 47). The fact of non-residence is of no importance, except as it tends to establish the fact that the defendant is not within the State (Peck v. Cook, 41 Barb. 549).

b. The affidavit.-An affidavit to obtain an order for service of a summons by publication may be made by the plaintiff (Waffle v. Goble, 53 Barb. 517; 35 How. 356). Its being wrongly entitled will not affect the regularity of the order Barnard v. Heydrick, 2 Abb. N. S. 47). It 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 (Hyatt v. Wagenright, 18 How. 248; Cook v. Farren, 34 Barb. 95; 12 Abb. 359; 11 id. 40). An affidavit which stated "that G. D. and J. D. reside in the State of California, but their present place of residence therein deponent is unable to state," is not suffi cient; it does not show that the residence could not be ascertained" with reasonable diligence" (Cook v. Farren, 34 Barb. 95; 12 Abb. 359; 11 id. 40). An affidavit showing that the defendant is a resident of the State, and that deponent is informed he is absent from the State, and that he believes he is absent for the purpose of defrauding his creditors, without showing grounds for that belief, is insufficient, and an order granted on such an affidavit is irregular, and it and all subsequent proceedings will be set aside on motion (Warren v. Tiffa ny, 9 Abb. 66; 17 How. 106). But an affidavit on information and belief of the non-residence of the defendant was held sufficient (Van Wyck v. Hardy, 11 Abb. 474; 20 How. 222).

c. Form of summons.-Where the service is by publication, the summons need not mention the name of this State in designating the place where it has been or will be filed (Cook v. Kelsey, 19 N. Y. 412; 8 Abb. 177). The publication of a summons against a non-resident is good where the only statement of the place where it has been filed is contained in a note appended to the copy of the summons declaring that it "has been filed in said clerk's office;" the summons itself, immediately preceding, stating the city and county where such clerk's office is situate (id.) And where the summons was dated at "New York," and stated that the complaint was filed in the clerk's office of the city of New York, and required the copy answer to be served at 13 Chambers street, in the city of New York," but the copy summons published had the words "13 Chambers street," only,-held sufficient (Van Wyck v. Hardy, 11 Abb. 473; 20 How. 222).

d. The order. The order for publication should recite the summons in the action, or refer to it as being annexed, that it may appear that there was a summons, and for the purpose of identifying it (Rawdon v. Corbin, 3 How. 416; Vernam v. Holbrook, 5 id. 3; Evertson v. Thomas, 5 id. 46). It need not recite the facts which entitle the plaintiff to the order (Barnard v. Heydrick, 2 Abb. N. S. 47). An order which does not direct copies of the summons and complaint to be mailed is void (Towsley v. McDonald, 32 Barb. 609; Warren v. Tiffany, 9 Abb. 66; 17 How. T06), and wherever a service by mail is proper, if the order omit to direct such service, it will be void (id.) An order which directed merely that " a copy of the summons and complaint be deposited in the post-office, addressed to the defendant," held insufficient (Hyatt v. Wegenright, 18 How. 248). It ought to have directed the deposit "forthwith," and that the summons and complaint should be directed to the defendant at his residence, naming it, if known (id.) Properly the order should be filed, before the papers are deposited in the mail, but an omission to file the order may be rectified at any time by filing the order nunc pro tunc (Barnard v. Heydrick, 2 Abb. N. S. 48; Sillick v. Heydrick, id. 57).

a. Affidavits to be filed.-The affidavits on which the order is obtained should be left with the judge, or filed within five days (Vernam v. Holbrook, 5 How. 3; Rule 4). But they may be ordered to be filed nunc pro tunc (id.)

b. Deposit in post-office.-A copy of the summons and complaint is to be deposited forthwith in the post-office; and where the order for publication was made on the 24th of October, and the copy summons, &c., was not deposited until the 9th of November following, it was held not to be a deposit forthwith, and that a judgment subsequently entered on default of the defendant to answer was irregular (Back v. Crussell, 2 Abb. 386). Where the order was made on the 18th, and the deposit made on the 22d of the same month, held regular (Van Wyck v. Hardy, 11 Abb. 474; 20 How. 222), the delay being accounted for. Forthwith means "reasonable dispatch" (id.) Postage to be prepaid, § 411, post.

c. Publication.-The complaint need not be published (Anon. 1 Code Rep. 102; 3 How. 293); a publication of the summons for seventy days held to be a publication for ten weeks (The People v. Gray, 10 Abb. 468); a publication for thirty-nine days, held a publication for six weeks (Olcott v. Robinson, 21 N. Y. 150; and see § 425).

d. As to notices required to be published in Hamilton county, see Laws 1860, ch. 297; id. ch. 95; Laws 1866, ch. 690; Laws 1867, ch. 162.

e. Filing complaint.-It has been held that the service by publication is insufficient, unless the complaint be filed before publication, and that the summons as published must state the time and place of filing. A judgment entered upon a service thus defective is a nullity (Kendall v. Washburn, 14 How. 380; Titus v. Relyea, 16 id. 371; 8 Abb. 177). But in Waffle v. Goble, 53 Barb. 517, it was held that filing the complaint was not necessary to the regularity of the judgment, where after the order for publication the summons was personally served out of the State.

f. Where the complaint was filed on the 22d of September, and the summons, dated and published on the 23d of September, stated, the complaint has this day been filed,-held to be a sufficient compliance with the statute (Jacquerson v. Van Erben, 2 Abb. 315).

9. Judgment.-Where, after an order for service by publication, judgment was entered, and it appeared on the face of the record that there had not been a six weeks' publication of the summons, and there was no proof of a deposit of copies of the summons and complaint in the post-office, nor of personal service out of the State, nor did the record contain the affidavit on which the order for service was granted,-held that the record did not show jurisdiction of the person, and the judgment was set aside (Hallett v. Righters, 13 How. 43). See note to section 246, post. A judgment obtained on a service by publication has no binding force in personam, and cannot be sued upon (Kane v. Cook, 8 Cal. R. 449; Force v. Gower, 23 How. 294; Fiske v. Anderson, 33 Barb. 71; 12 Abb. 8). See Rule 25, Supreme Court.

h. Admitting defendant to defend after judgment does not open the judgment, nor stay the proceedings upon the execution (Carswell v. Nville, 12 How 445). As to terms upon which admitted, see Hartwell v. White, 9 Paige, 368.

§ 136. (Am'd 1849, 1851, 1866). Joint and several debtors— Partners.

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.

a. Where in an action against two defendants, as joint debtors, the summons is served on one only, who appears, no appearance being entered for the other defendant, judgment should be entered against both defendants (N. B'k of Ky. v. Wright, 5 Rob. 604; Stannard v. Mattice, 7 How. 43; Lahey v. Kingon, 13 Abb. 192; see Brown v. Richardson, 4 Rob. 603); and it would in such a case be irregular to enter the judgment against the defendant served only (Niles v. Battershall, 2 Rob. 146). But such a judgment is a judgment in form only, as against the defendants not served with process (Foster v. Wood, 1 Abb. N. S. 150; 30 How. 284). After such a judgment, a second action may be brought against both defendants, alleging the recovery of the judgment, serving process on the defendant not before served and a judgment taken against him (Dean v. Eldridge, 29 How. 218; see Johnson v. Smith, 23 How. 444; Betts v. Hillman, 15 Abb. 184; Benson v. Paine, 9 Abb. 28).

b. Heirs.-The several heirs of a person deceased, although they must be sued in one action for the debts of the ancestor to the extent of the real estate descended, are not such joint debtors as that on a service on one a judgment in form can be entered against the others (Kellogg v. Olmstead, 6 How. 487).

c. Partners.-"Defendants severally liable," in sub. 2, construed as meaning defendants liable separately from the defendants not served, though jointly as respects each other; so that in an action against three persons, as partners, one not being served with the summons, nor appearing, the plaintiff is entitled to judgment against the other two, upon evidence that they alone constituted the partnership (Pruyn v. Black, 21 Ñ. Y. 300). In such a case to entitle the plaintiff to a judgment against the defendant not served, it must be shown he was a partner (Crandall v. Beach, 7 How. 271).

d. When one partner colludes with a creditor of the firm without the

knowledge of his co-partner, to have a judgment rendered against the property of the firm, by a service on such colluding partner alone, the court will, on motion of the partner who has been deceived, open the judgment (Griswold v. Griswold, 14 How. 446; Everson v. Gehrman, 10 id. 301); and where the service was on one defendant only, who made default, and judgment was entered in form against all, the court subsequently, upon the application of the defendant not served, permitted him to come in and defend (Ford v. Whitridge, 9 Abb. 416).

a. In an action on contract against two defendants as partners, if the complaint is served on one only, the other may appear voluntarily (Wellington v. Classon, 9 Abb. 175; 18 How. 10; see Waterbury Leather Co. v. Krause, 9 Abb. 175, n.)

See notes to sections 120, 289, 291, 274 and 375.

§ 137. 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.

b. Where an order for publication has been made, and the defendant is personally served with summons out of the State, he has twenty days' time to answer, from the day of the personal service out of the State (Dykers v. Woodward, 7 How. 313, approved G. G. Barnard, J.; Sherman v. Strakosh, Transcript, 3 March, 1865; see contra Tomlinson v. Van Vechten, 6 How. 199; Abrahams v. Mitchell, 8 Abb. 123). Where the summons has been published, the time to answer does not commence to run until the completion of the six weeks of publication (Richardson v. Bates, 23 How. 516; Brod v. Heyman, 3 Abb. N. S. 396).

c. After commencing to publish the summons, the defendants served a notice of appearance, and demanded a copy of the complaint; plaintiffs, within twenty days after such demand, and without serving any copy complaint, and giving notice to the defendants, entered judgment, as for want of an answer, held irregular (Downer v. Mellen, 50 Barb. 232).

§ 138. (Am'd 1851.) Proof of service.

Proof of the service of the 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, 2. If by any other person, his affidavit 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 certificate, affidavit, or admission, must state the time and place of the service.

d. Sheriff's certificate.-Where the proof of service is the sheriff's certificate, it should state or refer to the name of the cause, and that the sum