2, which, in the former act, was limited to actions arising out of contract, is now on the contrary relieved from that restriction, and those imposed upon applications for leave to defend before judgment are now removed. The provisions for the protection of bona fide purchasers, under judgments obtained in this manner, have also for the first time been inserted by those amend

ments.

The cases with reference to service upon a foreign corporation, have been already cited in the course of this chapter: see also the observations below as to non-resident defendants.

In the subsequent portion of the work, which is devoted to the consideration of the provisional remedy of attachment, the question as to what will, or will not, be considered as a fraudulent departure or concealment, will be found treated of in detail. See in particular the cases of Morgan v. Avery, 2 C. R. 91; 7 Barb. S. C. R. 656; Camman v. Tompkins, 1 C. R. (N. S.) 12; and Gilbert v. Tompkins, Id. 16, there cited. Where a defendant had established a regular system, by which he had always notice of the approach of the sheriff, with a view to prevent service; but afterwards followed him, on horseback, within sight but out of reach, service by publication was denied, on the ground that, though the intent was obvious, it could neither be said that the defendant "could not be found," or that "he kept himself concealed."- Van Rensselaer v. Dunbar, 4 How. 151.

In actions where the defendant is non-resident, the fact of his having property within the state must appear distinctly and affirmatively, or the court will have no jurisdiction. It would seem, that in these cases, no previous attempt to serve process is necessary, the proof of non-residence being, of itself, sufficient evidence that the party cannot be found within the state.-Vernam v. Holbrook, 5 How. 3; Rawdon v. Corbin, 3 How. 416. See observations above as to the absolute necessity of service of this nature, in all cases where the defendants are non-residents, and cannot be served within the jurisdiction.

The utmost care should be taken in the preparation of the affidavits on which the application is grounded, as the courts are extremely strict in requiring that every provision should be complied with. See Evertson v. Thomas, 5 How. 45; 3 C. R. 74. The facts necessary to confer jurisdiction must be stated positively, and not on mere information and belief (Id.), although, of course, this rule admits of some qualification, with reference

to facts not within the personal knowledge of the party making the affidavit. See this point fully treated in a subsequent chapter, under the analogous head of Attachment, and also with reference to the necessary evidence in cases of arrest.

In every such affidavit, substantive statements of the existence of a cause of action sufficient to give jurisdiction, and of facts sufficient whereon to ground this peculiar species of relief -that a summons and complaint have been made out-and, where the application is under subdivision 2, that due diligence has been used for the purpose of attempting to serve the former, are absolutely essential, and the summons ought to be recited in the affidavit, or referred to as being annexed. See Rawdon v. Corbin, 3 How. 416. See also Note, 1 C. R. 13.

N. B.-These decisions were under the Code of 1848, but the amended measures are still more imperative upon the same points. A form of affidavit on applications of this nature will be found in the appendix. As a matter of course, every fact which tends to show a fraudulent departure or concealment, must be clearly and distinctly stated, with all necessary detail, where an inference to that effect is to be drawn from any combination of circumstances; and, equally of course, the facts so to be proved may be sustained by different affidavits, where they are not all within the knowledge of one single party.

The disposal of the affidavits to be used does not appear to be pointed out by the Code, but the usual, and doubtless the proper practice, will be to file, or to leave them with the judge who grants the order; Vernam v. Holbrook, 5 How. 3, above cited. This appears most essential with a view to establishing the validity of the proceedings, if called into question thereafter. In the same case a third affidavit, not filed with the order, supplying defects in two which were so filed, was admitted as sufficient to sustain the proceeding, on allegation that it had been used before the judge; and a motion to set aside the order on the ground of defects in the affidavits which had been filed, was denied.

The form of order to be drawn up on an application of this nature will be found in the appendix.

The applicant should of course be prepared with the names of two newspapers, to be inserted in the order, and also with the direction of the defendant, or proof that his residence cannot, after due diligence, be ascertained. In this latter case, an alle

gation to this effect, and proving the exercise of that diligence, must of course be inserted in the affidavits. It is needless to observe, that the strictest compliance with every direction contained in the order, is essential. The forms of affidavit necessary for the proof of that compliance, will be found in the Appendix.

It seems that personal service out of the limits of the state, in no respect does away with the necessity of publication, under the order; Litchfield v. Burwell, 5 How. 341.-1. C. R. (N. S.) 42. The effect of it is merely to dispense with the service by mail also prescribed by this section.-N. B. It seems questionable whether in this dictum, the words "equivalent to publication," have received their due weight. It would, however, be unsafe to rely on this view, or to omit the actual publication in any case, unless the point be made hereafter the subject of express decision. Service within the state, upon the responsible officer of a foreign corporation, would appear to be merely equivalent to personal service out of the state, on a non-resident deendant, and in no respect to dispense with the necessity of an order for publication being obtained, or of the other requisites of that order being complied with. See Hulbert v. The Hope Mutual Insurance Company, before cited.

The complaint need not be published with the summons. Anon. 3 How. 293; 1. C. R. 102, a point clear from the terms of the act itself. It is essential, however, that it should be previously filed, and that the summons should state the date and place of the filing, or the order will be irregular.

In cases of service of this nature, the action will not be held to be commenced, until the expiration of the time of publication, as prescribed in the order, sec. 137; where, therefore, the defendant had died during that period, it was held at special term that no action was pending that could be revived against his representatives; McEwens v. Public Administrator, 3. C. R.

139.

The above general doctrine was confirmed by the general Term on Appeal, though with reference to the peculiar circumstances of the case, it was held that an action had been duly commenced against the deceased, by the granting of the provisional remedy of attachment during his lifetime.—Moore v. Thayer, 6 How. 47; 3 C. R. 176.

The proceedings with reference to the entry of judgment on

the expiration of the time limited for publication, will be hereafter considered. It has been an usual practice to enter up such judgment forthwith, on the expiration of the period mentioned in the order. In Tomlinson v. Van Vechten, however, 6 How. 199; 1 C. R. (N. S.) 317, it was held that the service of the summons is not complete until that time, and that the defendant has the usual period of twenty days to answer, in addition, before judgment can be taken. It remains to notice the measures which the defendant may take to set aside service of this nature, or to obtain leave to come in and defend, after judgment obtained thereon.

It will be seen that, at any time before judgment, the defendant may come in and defend, as of course; and that he possesses the full power of doing so, and of enforcing restitution, if he prevail, (except as regards the rights of bonâ fide purchasers,) within a very extended period after its rendition, except in the single case of divorce, on proof that he has not had a full year's previous notice of such judgment; a provision which renders it highly advisable that, wherever practicable, a formal notice of judgment being entered, should be forthwith. served upon him on the part of the plaintiff. Under the Code of 1849, a defendant, who had been personally served out of the State, or who had received the summons by post, was precluded from coming in to defend after judgment.—See Hulbert v. The Hope Mutual Insurance Company, before cited; but this restriction no longer exists under the recent amendments. In many cases where an order of this description is obtainable, the same state of facts will warrant an application for an attachment, (see Moore v. Thayer, above cited,) which may be made at the same time and on the same affidavits; though it by no means follows that the latter will, in all cases, be also granted--the greater stringency of that species of remedy, rendering the courts more jealous as to its exercise.

By the above section, provision is not made for the case of a defendant, whose residence cannot be ascertained on due inquiry. In Close v. Van Husen, 6 How. 157, it was held that under these circumstances, the plaintiff still possessed a remedy in equitable cases, under the act of April 12, Laws of 1842, p. 363, where the last known residence of the defendant was within the State; and that such act was not inconsistent with the Code, and therefore still in force. The plaintiff, it was

held, "should present his application by petition, bringing his case within the 135th section of the Code, so far as form is concerned, and the first section of the act of 1842. The publication of the order should be in two newspapers, to be designated as most likely to give notice to the persons to be served, and for a period of three months. (Compare Code, sec. 135, with Law of 12th April, 1842, sec. 2, subd. 2.)"

The provisions of section 136, under which, in actions against several defendants, the summons may be served upon any one or more of them alone,and separate proceedings taken thereupon, against the parties so served, will be remarked; though, of course, it would be premature, at this point, to enter into the details of those proceedings. The peculiar description of process by means of which parties against whom a joint judgment has been entered without personal-service upon them, or by means of which the representatives of a deceased judgmentdebtor, may be summoned to show cause why they should not be bound by the judgment already on record, will be hereafter considered in connection with those proceedings. See sections 375 to 378 inclusive, and Forms in Appendix.

The following are the provisions of the Code on the subject of the proof of service of summons, &c., as above :

§ 138. 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.

It is essential that the sheriff's certificate should identify the summons and complaint served by him, as being the summons and complaint in the cause, or the service will be defective. Litchfield v. Burwell, 5 How. 341; 1 C. R. (N. S.) 42.

The sheriff's fees, in respect of service of process and papers as above, are as follows:-For service of the summons, or summons and complaint, 50 cts. ; for service of notice of object of suit, 37 cts. in addition; and for his certificate of the service of