a. Giving notice by mail is depositing a letter containing the requisite information, properly addressed, in the post-office. Vassar v. Camp, 14 Barb., 341.

See section 410 and Supreme Court Rule 5.

§ 412. [373.] (Amended 1849.) Existing suits. Double time, when served by mail.

Where the service is by mail, it shall be double the time required in cases of personal service.

b. This section applies to a notice of appeal. Dorlon v. Lewis, 7 Pr. R., 132.

§ 413. [374.] (Amended 1849.) Existing suits. Notice of motion, &c., when personally served.

Notice of a motion, or other proceeding before a court or judge, when personally served, shall be given at least eight days before the time appointed therefor.

§ 414. [375.] (Amended 1849.) Existing suits. When papers need not be served on defendant.

Where a defendant shall not have demurred or answered, service of notice or papers, in the ordinary proceedings in an action, need not be made upon him, unless he be imprisoned for want of a bail, but shall be made upon him or his attorney if notice of appearance in the action has been given.

c. One of several defendants who has appeared in an action, although he has neither answered nor demurred, is entitled to a notice of trial, and the court has no power to dispense with such service. Tracy v. N. Y. Steam Faucet Co., 1 Smith, 349.

d. "This provision does not embrace provisional remedies. These are not ordinary proceedings within the sense of the term as used in this section. Though a defendant has appeared he is not entitled to notice of an application for an order to arrest him. Neither is he entitled to notice of an application for injunction, before he has answered." Per Harris, J., in Becker v. Hager, 8 Pr. R., 69. And the service of an injunction, obtained after a defendant has appeared by attorney in the action, on the attorney instead of on the defendant, is a defective service; but it furnishes no reason for setting aside the injunction order. Ib.

e. After a defendant has appeared in the action, an application by the plaintiff for leave to amend must be on notice to the defendant. Hewett v. Howell, 8 Pr. R., 346.

§ 415. [376.] (Amended 1849.) Existing suits. Service of papers where party resides out of the State.

Where a plaintiff or a defendant who has demurred or answered, or gives notice of appearance, resides out of the State, and has no attorney in the action, the service may be made by mail, if his residence be known; if not known, on the clerk for the party.

§ 416. [377.] Summons and pleadings to be filed.

The summons and the several pleadings in an action, shall

be filed with the clerk within ten days after the service thereof, respectively; or the adverse party, on proof of the omission, shall be entitled, without notice, to an order from a judge that the same be filed within a time to be specified in the order, or be deemed abandoned.

a. The court will permit a party to file a pleading after the time limited therefor in an order to file it, if the omission be explained-as, if a copy be inadvertently filed instead of the original. Short v. May, 2 Sand. 639.

b. When a party files a pleading in obedience to an order under this section requiring him to do so, he is not bound to notify the party obtaining the order that the pleading is filed. Douoy v. Hoyt, 1 Code Rep. N. S., 286.

$ 417. [378.] Existing suits.

Service on Attorney.

Where a party shall have an attorney in the action, the service of papers shall be made on the attorney, instead of the party.

c. Notice of appeal should be served on the attorney of record in the court below, not on the party. Tripp v. De Bow, 5 Pr. R., 114; 3 Code Rep., 163.

d. The service of such notice being a jurisdictional question, the party can take advantage of it at any time, if he has not appeared so as to give jurisdiction in the Ib.

case.

e. Where such service was made upon the party only who had not appeared so as to give the court jurisdiction, the appeal was held a nullity. Ib.

f. Where the attorney for the plaintiff in error removed from the State, and notice had been given to the party to appoint another attorney, pursuant to the statute (2 R. S., 287, s. 67), held, nevertheless, that a motion to quash the writ of error could not be made without notice thereof to the plaintiff in error. Jewell v. Schouten, 1 Coms., 241.

g. "This section, like the 414th, applies to the ordinary proceedings in the action. Service of an injunction upon the attorney might be sufficient as a notice to him of the plaintiff's rights, but it could never be made the foundation of a proceeding against the defendant for its violation. Per Harris, J., in Becker v. Hager, 8 Pr. R., 69."

h. It is irregular to serve papers in a cause upon the attorney after he becomes a nonresident. Diefendorf v. House, 9 Pr. R., 243.

See note to section 285, p. 424, ante.

§ 418. [379.] Existing suits. When this chapter does not apply.

The provisions of this chapter shall not apply to the service of a summons, or other process, or of any paper to bring a party into contempt.

CHAPTER XII.

Duties of Sheriffs and Coroners.

SECTION 419. Duty of sheriff and coroner in serving or executing process, and

how enforced.

§ 419. [380.] (Amended 1849.) Duty of sheriff and coroner in serving or executing process, and how enforced.

Whenever, pursuant to this act, the sheriff may be required to serve or execute any summons, order, or judgment, or to do any other act, he shall be bound to do so in like manner as upon process issued to him, and shall be equally liable in all respects for neglect of duty; and if the sheriff be a party, the coroner shall be bound to perform the service, as he is now bound to execute process where the sheriff is a party; and all the provisions of this act relating to sheriffs shall apply to coroners when the sheriff is a party.

See Supreme Court Rule 6, and section 290.

CHAPTER XIII.

Accountability of Guardians.

SECTION 420. Guardian not to receive property until security be given.

$ 420. [381.] Guardian not to receive property until security given.

No guardian appointed for an infant, shall be permitted to receive property of the infant, until he shall have given sufficient security, approved by a judge of the court or a county judge, to account for and apply the same, under the direction

of the court.

Supreme court rules, 54 et seq.

CHAPTER XIV.

Powers of Referees.

SECTION 421. Referees may administer oaths, &c.

§ 421. [382.] Powers of referees.

Every referee appointed pursuant to this act, shall have power to administer oaths in any proceeding before him, and shall have generally the powers now vested in a referee by law.

See note on page 385.

CHAPTER XV.

Miscellaneous provisions.

SECTION 422. Papers lost or withheld, how supplied.

423. Where undertakings to be filed.

424. Judgment on bond and warrant of attorney, executed before July 1,

1848.

425.

Time for publication of notices, how computed.

426.

Laws of other States and governments, how proved.

§ 422. Papers lost or withheld, how supplied.

If an original pleading or paper be lost or withheld by any person, the court may authorize a copy thereof to be filed and used instead of the original.

See note to section 416, and Renouil v. Harris, 1 Code Rep., 125.

§423. Where undertakings to be filed.

The various undertakings required to be given by this act, must be filed with the clerk of the court, unless the court expressly provides for a different disposition thereof, except that the undertakings provided for by the chapter on the claim and delivery of personal property, shall, after the justification of the sureties, be delivered by the sheriff to the parties respectively for whose benefit they are taken,

See note to section 222 on page 316, ante.

§ 424. Judgment on bond and warrant of attorney, executed before July 1, 1848.

Upon any bond and warrant of attorney executed and delivered before the first day of July, 1848, judgment may be entered in the manner provided by sections 382, 383, and 384, upon the plaintiff's filing such bond and warrant of attorney, and the statement, signed and verified by himself, in the form prescribed by section 382.

See Allen v. Patterson, 1 Abbott, 354.

§ 425. Time for publication of notices, how computed. The time for publication of legal notices shall be computed so as to exclude the first day of publication, and include the day on which the act or event, of which notice is given, is to happen, or which completes the full period required for publication.

a. Notices or advertisements which by law are required to be published in any public newspaper published in this State, may be proved by the affidavit of the printer or foreman of the printer of such newspaper. Laws of 1835, c. 159, p. 168; and

see sections 138 and 407.

§ 426. Laws of other States and Governments, how proved. Printed copies in volumes of statutes, code, or other written law, enacted by any other State or Territory, or foreign gov ernment purporting or proved to have been published by the authority thereof, or proved to be commonly admitted as evidence of the existing law in the courts and judicial tribunals of such State, Territory, or government, shall be admitted by the courts and officers of this State, on all occasions, as presumptive evidence of such laws. The unwritten or common law of any other State or Territory, or foreign government, may be proved as facts by parol evidence; and the books of reports of cases adjudged in their courts, may also be admitted as presumptive evidence of such law.

b. See Laws of 1845, p. 326. Laws of 1846, pp. 204, 303; 6 Wend. 483; 2 ib. 411; Dall. 412; 9 Cranch, 122, n.; 1 Stark. Ev. (ed. 1842) 232, n. 2; 1 Phill. Ev. (Cow. and H. ed., 1843), 383; 3 ib., 1056, n. 708.

c. The charter of the city of New York may be read as evidence from a volume printed by authority of the common council, whether it was printed prior or subsequent to the act of April 17th, 1832. The charter may be so read on a trial involv ing the title to lands, the statute making no distinction in regard to the purposes