9. Where a defendant, proceeded against as an absconding debtor, by attachment and publication of summons, and, a few days after publication of summons, called upon the plaintiff's attorney and inquired the amount of plaintiff's claim, and was handed a copy of the summons and complaint, the plaintiff's attorney saying to him: "There is a copy of the summons and complaint for you, in which is contained the whole amount of the claim," and having read them, laid them down and started to go away, and was requested by the attorney to take them along, but replied that he did not want them; on plaintiff entering judgment, for want of an answer or demurrer, as upon personal service, it was decided that he was irregular.

80. Where the summons in an action is not legally served, the court has no jurisdiction over the defendant, and all proceedings based on the pretended service are void.

81. The object of the summons is to give the defendant an authentic and fair notice that an action has been commenced against him, and to notify him of the time allowed to prepare and interpose a defense.

82. Putting the defendant in unknown possession of a summons, disguised or enveloped so as to conceal from him the knowledge which it was intended by the law should be communicated to him, is not good service.

83. Even if the defendant, after an attempted service upon him, discovers the contents of the summons, of which he has possession, served upon him disguised in an envelope or any other way, it is not good service, if he is beyond the limits of the state when he makes such discovery.

84. The service of the summons was fraudulent and void, and the judgment and all other proceedings thereon were set aside, where the service was attempted to be made by following the defendant to the steamer in which she was about to embark for California, and then at the last moment causing to be delivered to her a sealed box, which was represented to contain a present for a third person in California, and a note for her. self, but which in reality she found, on opening it at sea, to contain the summons in the action.

85. Where a plaintiff undertakes to obtain a judgment against a defendant, without any appearance by the latter, he will be compelled, at his peril, to bring such defendant within the jurisdiction of the court in which he is proceeding, or else his proceedings will be set aside as irregular, defective and void.

86. Where service of the summons and complaint was made upon the father of the defendant, supposing him to be the defendant, and, upon affidavit of personal service, judgment was entered against defendant, held, that although the summons did afterwards come to the defendant's hands, he did not appear in the action, and the judgment, execution, &c., were entirely irregular, defective and void, and were set aside for want of jurisdiction.

87. Service means serving the defendant with a copy of the process, and showing him the original if he desires it.

88. Where the service of process is made by violently thrusting them upon the person, the service will be held void.

89. A person or an officer has no right to commit an assault and battery upon an individual in trying to serve the papers upon him.

90. Where a person upon whom service of process or papers is desired to be made, refuses to receive them, the person making the service should inform him of the nature of the papers, and of his purpose to make service of them, and lay them down at any appropriate place in his presence.

91. It was held in a case in England, that where the defendant refused to receive process, laying it on his shoulder was good service.

92. (11 Q.) Service of process out of the territorial jurisdiction of the court from which it issued is a nullity, and therefore service of process issued from any of the courts

of this state, out of this state, is inefficacious as the basis of any judicial proceeding in personam.

93. In all actions of which the New York superior court has jurisdiction, by subdivision 1 of § 23, and in an action against several persons jointly liable on contract, when one of them resides in the city of New York, the summons may be served in any county of the state, and the service will be valid.

94. It is only in those actions of which the New York superior court acquires jurisdiction, by the fact of personal service of the summons on all the defendants within the city of New York, that service of the summons out of the county of New York is unauthorized and invalid.

95. The attorney general's opinion is, that process may be served on board a British man-of-war lying within the jurisdiction of the court.

96. (12 Q.) Service of affidavits and notice of motion on a Sunday is irregular and void.

97. Writs of subpoena and injunctions can be served on the days of holding charter elections.

98. The statute prohibiting the opening of courts on election days, does not apply to mere charter election days.

99. Service of summons with or without an order of arrest, on an election day and all proceedings under it, are void. (See Sess. Laws, 1842, p. 109.)

100. Previous to 1842, the words of the statute, relative to service of process on election days, were that no civil process shall be served, &c., on either of the days during which such election shall be held.

101. In 1842. the statute relative to service of process on election days, was amended so as to read that “no declaration by which a suit shall be commenced, or any civil process, or proceeding in the nature of civil process, shall be served," &c.

102. The service of process on Sunday, and on Saturday, upon persons who observe that day of the week as a holy day, and upon an elector on the day of any election, would not have the effect to commence a suit, unless the defendant appeared, to object to the form of service.

103. A judgment entered in an action commenced by the service of a summons in a manner prohibited by statute, would be confessedly coram non judice, and void.

104. A judgment by default based upon service of summons upon an elector on election day is irregular.

105. Whenever a town meeting shall be held in any town, no civil process shall be served in any such town on any elector entitled to vote therein, on any day during which such town meeting shall be held.

106. The fact that process was served on Sunday, does not render a judgment in the action void.

107. As by the the method of computing time in this state, established by the Revised Statutes, a day consists of twenty-four hours, and commences and ends at midnight; a statute forbidding an act to be done on a particular day, has reference to this mode of computation by the calendar, unless there is some express declaration to the contrary. 108. (13 Q.) The court will not sanction any attempt, by fraud or misrepresentation, to bring a party within its jurisdiction.

109. Where a party was induced by a false statement, to come within the jurisdiction of the court for the purpose, and was then served with process, the service was on mɔtion, set aside.

110. A defendant will be discharged from arrest where it appears the arrest was effected, by enticing him by means of false representations, within the bailiwick of the sheriff in whose hands the process was.

111. Where a defendant residing in Canada, was inveigled into this state by trick for the purpose of effecting service of summons upon him, the service and all proceedings thereunder were set aside, and an attachment vacated.

112. (14 Q.) In an action against husband and wife, relative to real estate, where process is served only on the husband, he is bound, except where the estate is the separate property of the wife, to enter a joint appearance, and put in a joint answer for himself and wife.

113. An inchoate right of dower is an interest which results from the marital relation, and does not belong to the wife as her separate estate.

114. (15 Q.) Where a summon's and complaint with affidavits for an injunction, in an action against the mayor, &c. of New York, were served on the mayor, and the summons and injunction upon the two boards of aldermen, held that it was sufficient service upon which to found proceedings for contempt, in disobeying the injunction.

115. (16 Q.) The service of process upon the governor or chief executive magistrate, and on the attorney general, in a suit against a state, is a regular service.

116. (17 Q.) A resident of another state coming to this state to be examined as a witness, in an action to be tried in one of our courts, and attending and being in this state for that purpose only, is exempted from service of process, and if served the service will be absolutely set aside and discharged.

117. A resident of another state, a party to an action to be tried here, and who attends court here as a witness, is privileged, while here, and returning home, not only from arrest, but service of process in any action.

118. A non-resident party to, or witness in, an action being tried here, who comes in this state to attend court, is privileged from arrest and service of process while coming here, while he remains here (if attending court), and while returning home.

119. (18 Q.) The personal service of a summons upon an infant of the age of 14 years under sub. 4 of this section has no other use than to hasten the period within which the plaintiff may apply for the appointment of a guardian, when the infant himself neglects to apply, since, until this appointment is made, there can be no further proceedings against the infant.

120. (19 Q.) The objection that the summons was not properly served is not available in an answer or demurrer, but only on motion to set aside the proceedings.

121. The meaning of the section of the Code allowing the defense to be set up, that "the court has no jurisdiction of the person," is, that the person is not subject to the jurisdiction of the court; not that the suit has not been regularly commenced.

122. If a suit has not been regularly commenced, the defendant must relieve himself from such irregularity by motion, not by answer or demurrer.

123. (20 Q.) Process for the commencement of an action against a convict in the state prison, may be seved upon him in prison.

124. Although a convict in state prison, he has no right to sue, still he may be sued, and the suit prosecuted to judgment.

125. The appointment, under the statute of trustees of the estates of debtors, imprisoned for crimes, does not dispense with the necessity of making them a party to the action.

$135. Publication when defendant cannot be found.

Where the person, on whom the service of the summons is to be made, cannot, after due diligence, be found within the state, and that fact appears by affidavit to the satisfaction of the court or a judge thereof, or of a county judge of the county where the trial is to be had, and it in the like manner appears that a cause of action exists against the defendant, in respect

to whom the service is to be made, 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 the service be made by the publication of a summons in either of the following cases:

1. Where the defendant is a foreign corporation, has property within the state, or the cause of action arose therein;

2. Where the defendant, being a resident of this state, has departed therefrom, with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with the like intent;

3. Where he is not a resident of this state, but has property therein, and the court has jurisdiction of the subject of the action.

4. Where the subject of the action is real or personal property in this state, and the defendant has, or claims a lien or interest, actual or contingent therein, or the relief demanded consists wholly or partly in excluding the defendant from any interest or lien therein;

5. Where the action is for divorce, in the cases prescribed by law;

The order must direct the publication to be made in two newspapers to be designated as most likely to give notice to the person to be served, and for such length of time as may be deemed reasonable, not less than once a week for six weeks. In case of publication, the court or judge must also 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. 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.

The defendant against whom publication is ordered or his representatives, 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, the defendant, against whom publication is ordered, or his representatives, may in like manner, upon good cause shown, 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 the judgment, or any part thereof, have been collected, or otherwise enforced, such restitution may thereupon be compelled as the court directs; but the title to property sold under such judgment to a purchaser in good faith shall not be thereby affected. And in all cases where publication is made, the complaint must be first ffled, and the summons, as published, must state the time and place of such filing.

In actions for the foreclosure of mortgages on real estate, already instituted, or hereafter to be instituted, if any party, or parties, having any interest in, or lien upon such mortgaged premises, are unknown to the plaintiff, and the residence of such party or parties cannot, with reasonable diligence, be ascertained by him, and such fact shall be made to appear, by affidavit, to the court, or to a justice thereof, or to the county judge of the county where the trial is to be had, such court, justice or county judge may grant an order that the summons be served on such unknown party or parties by publishing the same for six weeks, once in each week successively, in the state paper and in a newspaper printed in the county where the premises are situated, which publication shall be equivalent to a personal service on such unknown party or parties.