Ward agt. Kalbfleish.

by the amendment. I think the case does the referee injustice, for the amendment relates back to the commencement of the action, and makes the complaint as if it had been originally drawn as amended. Suppose the summons had been served as it was in September, 1856, and no complaint had been served until 1857, the statute of limitations and a defence under it would have had respect to the commencement of the action, rather than the service of the complaint or the issue joined in the action. Amendments are not unfrequently allowed rather than nonsuit the plaintiff, to save a cause of action from the effect of the statute of limitations. Assuming that the referee decided as represented, the decision was erroneous; but this error was against the plaintiff, and is not, therefore, cause for reversal of the judgment. Another claim, however, which was allowed to the plaintiff by the referee, was clearly barred by the statute of limitations, that for services in the action in the justices' court, the last services in which was rendered. April 29, 1850, more than six years before the commencement of the action. From the amount of the judgment the evidence of the value of the different services, but for the positive statement in the case, my impression would have been that the referee had in truth allowed the plaintiff for all the services claimed, except for those in the justices' court, and that the fifty dollars rejected as barred by the statute of limitations was for the latter. In that view the judgment would be right, but we must take the case as it is; and for the error apparent, in the allowance of the claim for services barred by the statute, the judgment must be reversed. We are not permitted to sustain the judgment, for the reason that an equivalent error has been committed against the plaintiff.

Judgment must be reversed and a new trial granted. costs to abide event.

Cook agt. Farnam.

SUPREME COURT.

Cook agt. FARNAM.

Where a tenant in common of premises sold on foreclosure or partition, has not been properly served with process, the purchaser will not be compelled to complete his purchase.

Where the statute, in reference to service of process on absent defendants, has not been strictly complied with, to wit, for the want of evidence that the residence of such defendants could not be ascertained "with reasonable diligence," the order of sale and proceedings are fatally defective.

New York General Term, June, 1861.

Before CLERKE, SUTHERLAND and ALLEN, Justices. APPEAL from order of Judge INGRAHAM, denying motion that purchaser complete purchase and sale in partition.

Mr. ARNOUX, for appellant.

Mr. PARSONS, for respondent.

By the court, ALLEN, Justice. The objections to the title is that one of the infant heirs-at-law of the former owner, and a tenant in common of the premises sold, was not properly served with process.

At the time of the commencement of this action she resided in California, and was and still is an infant under the age of twenty-one years. An order for the service of the summons upon her, by publishing the same, was made by Judge ROOSEVELT, upon the affidavit of the plaintiff, an aunt of the infant defendant. His order did not direct a deposit of the summons and complaint in the post-office, directed to the defendant, at her place of residence. affidavit did not show, nor did it appear in any way, that the residence of the infant was unknown to the plaintiff, and could not with reasonable diligence be ascertained by her. (Code, §135.) The only statement in the affidavit bearing upon the question is, "that George Dunphill and

The

Cook agt. Farnam.

Josephine Dunphill (the infant) resided in the state of California, but their present place of residence therein deponent is unable to state"-implying, that she had known where they had resided at one time, without its appearing that they had removed at all from such place of residence. The affidavit is entirely consistent with the fact that they had resided, within the knowledge of the deponent, at Benecia, or any other given place, and still resided there, the individual making the affidavit having no reason to suppose or believe that they had removed, but excusing herself for denying present knowledge of their residence, by reason of the want of that present knowledge, which is the result of an actual and recent visit to their domicil.

But, conceding that the affidavit was honestly made, and the plaintiff had no knowledge or belief as to the place of residence of the absentees, the statute was not complied with, for the want of evidence that their residence could not be ascertained "with reasonable diligence." It is palpable that slight diligence only would have been necessary to ascertain where they resided. But the statutory proceedings for acquiring jurisdiction of absent defendants. must be strictly complied with to give the court jurisdiction. The jurisdiction is strictly statutory, and can only be acquired in the mode prescribed by the statute. (Hallett agt. Righters, 13 How., 43; Burham agt. Peabody, 3 id., 109; Kendall agt. Washburn, 14 id., 380.) Even admission of the service of process out of the state is ineffectual to give the court jurisdiction in personam. (Litchfield agt. Burnett, 5 id., 341;) and see Eustice agt. Thomas, (5 How., 45.) As the infant could not convey her estate, she cannot by any covenant confer jurisdiction upon the court, or ratify or approve the order of sale. Her power of attorney to Mr. Lamar is a nullity.

The order at special term must be affirmed with costs.

People ex rel. McSpedon agt. Board of Supervisors of New York.

SUPREME COURT.

THE PEOPLE ex rel. THOMAS MCSPEDON and CHAS. W. BAKER, appellants agt. THE BOARD OF SUPERVISORS of the county of New York, respondents.

New York General Term, May, 1861.

CLERKE, SUTHERLAND and ALLEN, Justices.

IN November, 1859, the appellants made an application to the supreme court for a writ of mandamus to compel the respondents to convene and raise by tax the sum of $193,820.26, to defray expenses alleged to have been incurred by the commissioners of records, under a contract made with the appellants to collate, print and bind the indexes of the records in the office of the register of the city and county of New York. The matter was heard before Mr. Justice INGRAHAM, who rendered a decision denying the application of the appellants. (Reported 18 How., 152.)

The decision was appealed from and the case was argued in February last.

The court affirmed the decision of Justice INGRaham.

J. W. EDMONDS and JAS. T. BRADY, for appellants.
A. R. LAWRENCE, Jr., for respondents.

Mayor, &c., of New York agt. Parker Vein Steamship Company.

NEW YORK SUPERIOR COURT

THE MAYOR, &c., of the City of New York, respondents agt. THE PARKER VEIN STEAMSHIP COMPANY, appellants.

In an action upon a penal bond for the payment of rent, which, in a certain lease, was covenanted by the defendants, to be paid for the privilege of collecting wharfage accruing from the use of certain piers,

Held that the defendants could not set up as a counterclaim the erection of certain fixtures on the piers, of which they claimed to be owners, and which they alleged they were entitled to remove; but the plaintiffs forbade such removal, and prevented the same, and took possession thereof.

The rule settled by the court of appeals in Walter agt. Bennett, (16 N. Y. R., 250,) that when the cause of action is alleged as a tort, there can be no recovery as upon contract, although the facts alleged would have sustained such an action, is equally applicable to a counterclaim.

Heard General Term, Jan., 1861. Decided June 15, 1861. HOFFMAN and WOODRUFF, Justices.

APPEAL from judgment at special term.

H. H. ANDERSON, for respondents.
J. M. VANCOTT, for appellants.

By the court, WOODRUFF, Justice. We are of opinion that the facts alleged in the defendants' answer are not available to the defendants as a counterclaim within the meaning of that term, as employed and defined in the Code; and, therefore, whether they constitute a cause of action in favor of the Parker Vein Steamship Company or not, they cannot be used to defeat the plaintiffs' recovery herein.

The plaintiffs' action is brought upon a penal bond signed and sealed by all of the defendants, conditioned for the payment of the rent which, in a certain lease, was covenanted by the Parker Vein Steamship Company, to be paid for the privilege of collecting the wharfage accruing from the use of certain piers by vessels occupying the same.

The action was, therefore, an action of contract.