Admitting this to be so, still the first publication of the notice of sale under a power in a mortgage, must be at least 84 days or 12 full weeks before the sale; one day being inclu ded and one excluded; and publication must be in every intervening week, or certainly until the expiration of the time of publication required by statute. It will not do to publish it 12 times in 12 different weeks, if 12 full weeks do not elapse. In Ronkendorf agt. Taylor, the first publication was on the 6th of December, and the last on the 10th of March. By this affidavit, the first publication in this case might have been on Saturday the 14th of December, and the last on Monday the 24th of February; and yet, within that case, the notice would have been published twelve weeks successively; that is, on some day in each of twelve consecutive weeks; although from the first publication to the sale, would have been only 78 days; and from the first to the last publication, but 73 days, both included. Upon this ground, this court decided that an affidavit that an advertisement or notice had been published six weeks successively, commencing on a certai day, was insufficient, under an insolvent law which required it to be published for six weeks successively." (Anon., 1 Wend., 90; 1 R. L., 462, § 5.) The court said the affidavit might be literally true, and yet only 30 days notice be given; and that it must be published 42 days, They in fact gave the same construction to the word “ week," as was given in Ronkendorf agt. Taylor. Sheldon agt. Wright, (7 Barb., 46,) seems opposed to this case, but no authority is cited. I do not say that an affidavit of publication for twelve weeks successively, is not sufficient on a mortgage sale, if it distinctly appear that the first publication was at least 84 days, (the day of first publication exclusive.) before the safe. And yet it would seem from the case in Wendell, that the affidavit should show that the full time notice should be given, had elapsed, from the first to the last insertion. It is undoubtedly safer, on a statute foreclosure, to have thirteen insertions, and 84 days from the first to the last; especially if the sale is not to be on the day of the thirteenth regular hebdomedal insertion. It follows, that the affidavit of publica tion is defective in this case, unless the words "between the 7th day of December, 1850, and 1st day of March, 1851," supply the defect. The 7th day of December was Saturday; and that was the last day that the notice could have been published. It has been decided that "till" includes the day to which it is prefixed. (Dakins agt. Wagner, 3 Dowl. P. C., 535.) But "between," when properly predicable of time, is intermediate, and strictly does not include, in this case, either the 7th of December or 1st of March. "Between two days" was exclusive of both. (Atkins agt. Boylston, F. and M. Ins. C., 5 Metc.. 440.) The affidavit does not show a publication 84 days. I regret that the case must turn upon this technical objection, and when perhaps the publication was in fact sufficient, but I caunot say there has been a compliance with the statute. gested that the necessary affidavit might now be furnished. BRONSON, Ch. J. in Arnot agt. McClure, (4 Den., 41,) considered the affidavits a statute conveyance, where no deed was required. And Mr. Justice CADY, in delivering the opinion of the court in Cohoes Co. agt. Goss, (13 Barb., 144,) on the strength of Arnot agt. McClure, said, that until the the affidavits were made, filed and recorded, or a deed given, no title passed to the purchaser. But BRONSON, Ch. J. forbore to express an opinion as to the effect of filing a new and amendatory affidavit; and no such point was before the court in Cohoes agt. Goss. And it is provided by statute, ( Laws of 1838, ch. 266, § 8, amending 2 R. S., 547, 14,) that the affidavits "shall be evidence of the sale, and of the foreclosure of the equity of redemption." Nothing is said of their being merely a conveyance. I am inclined to the opinion that an amended affidavit may be filed according to the truth of the case; and that, as to the mortgagor at least, the affidavits may be filed at any time. Whether the amendment would take effect retroactively, it is not necessary now to decide. But the affidavits are not conclusive evidence, and the defendant must have an opportunity to disprove them; and therefore they came to be received upon argument. It was sug 6. Q. What constitutes a valid admission of service of process, and what is the effect of a defective admission? A. In Litchfield agt. Burwell, 5 How., 311, S. C., 1 Code Rep., N. S., 42. Special Term, December, 1850, SILL, J., it was decided, that an admission by a defendant of ser vice should state when and where service was made; and the court, before it will grant a motion for judgment on such admission, must be satisfied that the signature thereto is that of the defendant. (See Re Gibson, 5 English (Ark.) R., 572; Welch agt. Walker, 4 Porter, 120; Norwood agt. Riddle, 9 id., 426.) In Read agt. French, 28 N. Y. R., 285, September, 1863, WRIGHT, J., it was decided, that judgment by default cannot be entered except upon proof of personal service of the summons and complaint. An admission of service of the summons and complaint, not stating the mode in which the service was made, is not sufficient. The admission of a defendant of the service of a summons and complaint should state that the service was personal, by the delivery of a copy thereof to him, or the clerk will have no power or authority to enter judgment under section 246 of the Code. The Judge said: The judg ment in favor of the defendants French was clearly void, as it appeared that no action had ever been commenced against them by the service of a summons and complaint, and there was no confession of judgment, or authority given to enter one. Section 134 of the Code requires that the service of a summons shall be made by delivering a copy thereof to the defendant personally. Section 246 provides that judgment may be had in an action on contract, for the recovery of money only, if the defendant fails to answer, upon the plaintiff's filing with the clerk proof of personal service of the summons and complaint on one or more of the defendants, or of the summons alone pursuant to section 130. It will be perceived that the defendants, Clark & Hadwin, did not admit personal service of the summons and complaint. They merely admitted service of the summons and complaint on the 23d of January, 1854, without stating the mode in which the service was made. For aught that appeared the service may have been by publication under section 135, and the time of publication could not have elapsed when the judgment was entered. The summons and complaint may have been deposited in the post-office at Ogdensburgh, in compliance with an order for publication. The written admission of a defendant of the service of a sunimons and complaint should state that the service was personal, by the delivery of a copy thereof to him, or the clerk has no power or authority to enter judgment under section 246 of the Code. 7. Q. What fees are allowed for the service of summons and complaint? A. In Whipple agt. Williams, 4 How., 28, Special Term, June, 1849, ALLEN, J., it was decided, that no fee for serving the summons and complaint is taxable, unless the service is made by the sheriff, and then it is taxable as a sheriff's fee. In Benedict agt. Warriner and others, 14 How., 570, Special Term, September, 1857, JAMES, J., it was decided, that for serving a summons the sheriff is entitled to fifty cents for each defendant served. He is also entitled to six cents per mile for going, only to be computed from the court-house. But this fee only applies to the process itself, and not to the number of defendanta named, or who may be served. But one travel fee can be charged on the same process. For the certificate required by this section of the Code no compensation is provided by that name, but as it is an act which the officer is bound to perform, and invested with all the force and attributes of a former return to a writ, it must be regarded as the substitute for a return, and the officer is entitled to the fees allowed for such service (12) cents). In Wait agt. Schoonmaker, 15 How., 460, Special Term, January, 1858, HOGEBOOM, J., it was decided, that a sheriff may, under the statute, demand his fees for service of a summons and complaint previous to the service thereof; but if he serves them without prepayment, he cannot retain them and refuse to make a return because his fees are not paid. In Case agt. Price, 17 How., 348, Special Term, April, 1859, E. DARWIN SMITHI, J., it was decided that where the service is by any person other than the sheriff, then nothing more can be allowed than a reasonable compensation for the labor in making the service; there can be no allowance for constructive traveling or other services in such cases, and the affidavit should show the reasonableness of the charge; and where $65 were charged for the service of the summons on fifty two defendants, by a person not the sheriff, the charge being in amount equal to what would have been the legal fees for such services, the affidavit, in respect to this item, stated the expense for service on said defendants were necessarily incurred, according to the registry kept by the deponent, and according to his best knowledge and belief-the charge was disallowed. 8. Q. What proof is required to give a justice of the peace jurisdiction over absent defendants? A. The answer to this question will be found under § 53, Q. 5, What is the result of the decisions under this section! 1. (3 Q.) A sheriff's certificate of service of a summons which stated "that he served on the defendants a copy of the summons and complaint," without mentioning any cause in which it was served, is defective. 2. The certificate of service of a sheriff in our own state is proof, because he is acting under his official oath; but a sheriff of Ohio serving our process or notices in Ohio does it, not by virtue of his oath of office, but as a private individual. 3. A sheriff of any other state serving process there from our state should make an affidavit of service-not a certificate of service. 4. A sheriff's certificate of service of summons and complaint does not lose its force by lapse of time, or by being used upon the entry of a judgment afterwards vacated, but may be used on a second application for judgment. 5. Where a sheriff makes a service out of his own county, the proof of service must be by affidavit; his certificate is of no avail, as he has no authority to do official acts out of his county. 5. Where a sheriff's certificate is of no avail as evidence of service of the summons, the service being made out of his county, the defect may be rectified by the filing nunc pro tunc, an affidavit of the service. 6. A sheriff's certificate of the service of an order for the examination of a judgment debtor in supplementary proceedings is not sufficient evidence of service. 7. There are only two classes of cases where the certificate of an officer is evidence of the facts stated in it, and upon which some future action can be predicated, viz.: first, where it is made evidence by statute, and, second, where what is technically known as process is directed to the sheriff and he is required or directed to make a return thereto. 8. The return of a deputy sheriff in his own name is a nullity. The return should be in the name of the sheriff. 9. (4 Q.) The return of a sheriff, or the affidavit of a person acting in his place of the service of a summons, is not conclusive upon the defendant; he may be allowed to disprove it on a motion to set the proceedings aside. 10. It would be unnecessary, and in many cases very unjust, to drive the defendant to an action for a false return, instead of allowing him to disprove it on a motion to set the proceedings aside. 11. The service of a summons and complaint and order of arrest, made by delivering them to the sheriff, who deputed some one other than his deputy to serve them, and who made the service, which was certified in the sheriff's return, which stated that the sheriff had served them and had the undertaking; the return is conclusive in that suit. 12. It seems to be clear that there can be no averment against the return of the sheriff in the same action. 13. The return of the sheriff may sometimes be questioned when it comes in collaterally, and in a suit against him; and in some cases a return on a fi-fa has been disproved. 14. It would be very detrimental to the proper administration of justice if the official returns of a sheriff were liable to be contradicted. 15. There is no doubt that, in proper cases, the court will always give a party an opportunity to be heard upon the merits, where a default has been taken, if the application is in season. Beyond that the remedy should be against the officer. 16. The return of a constable, certifying the time and manner of his serving a summons upon the defendant, is presumptive evidence of what it states. 17. Where the statute designates one or more officers of a corporation upon whom service of process may be made, the return of a constable is, in like manner, evidence as to the official character of the person served with such process and of the facts which justify such service. 18. Where the defendant appears in season he may, notwithstanding the constable's return, raise and avail himself of the objection that the summons was not served in such manner as to confer jurisdiction upon the justice. 19. Where, in an action against a railroad company, the constable returned upon the summons that he had served the same personally on A. B., freight agent of the defendants, at, &c., no person having been designated by them upon whom service of process might be made in the county, according to statute, and that no officer of the company resided within the said county upon whom process might be served, held that the defendants should have been permitted to show that the service upon the freight agent was unauthorized by the statute, inasmuch as there was a resident director in the county. 20. The objection that a summons as the commencement of a suit, was not properly served,is not available in an answer or demurrer, but only on motion to set the proceedings aside. 21. If a suit has not been regularly commenced, the defendant must relieve himself, from such irregularity by motion. 22. If the defendant has been served with process, by the plaintiff personally, he must take advantage of the irregularity by motion to set aside the proceedings before judg ment. 22. A pretended service of process on a defendant, may be disproved by affidavit on motion. 23. Where a defendant has endeavored to evade service of summons, the court will, on motion to vacate the judgment for non-service of the summons, require the defendant to furnish satisfactory evidence that he was not served. 24. (5 Q.) Where an action is commenced by the publication of the summons, although the statute requires the affidavit of publication to be made by the printer, or his foreman or clerk, yet it is sufficient if made by the publisher. 25. Although in a statute foreclosure of mortgage, the affidavit of publication of the notice of sale in a newspaper, is required to be made by the printer or his foreman or clerk, it is sufficient if made by the publisher. 26. (6 Q.) An admission of service by a defendant, should state when and where ser vice was made. 27. Before the court will grant a motion for judgment on an admission of service, by a defendant personally, it must be satisfied that the signature thereto is that of the de fendant. 27. Judgment by default cannot be entered, except upon proof of personal service of the summons and complaint. 274. An admission of service of the summons and complaint, not stating the mode in which the service was made, is not sufficient. 28. The admission of service of the summons and complaint by the defendant, should state that the service was personal by the delivery of a copy thereof to him, otherwise the clerk will have no power or authority to enter judgment under section 246. 29. (7 Q.) No fee for serving the summons and complaint is taxable, unless the ser vice is made by the sheriff, and then it is taxable as a sheriff's fee. 30. For serving a summons the sheriff is entitled to fifty cents for each defendant served. 31. The sheriff is entitled to six cents a mile travel for going to serve a summons, only to be computed from the court house; but this fee only applies to the process itself, and not to the number of defendants named or who may be served. 31. But one travel fee can be charged on the same process. 32. For the certificate required by this section of the Code, no compensation is provided by that name, but as it is an act which the officer is bound to perform, and invested with all the force and attributes of a former return to a writ, it must be regarded as the substitute for a return, and the officer is entitled to twelve and a half cents, the fees allowed for such service. 33. A sheriff may, under the statute, demand his fees for service of a summons and complaint, previous to the service thereof. 34. If a sheriff serves a summons and complaint without pre-payment, he cannot retain them and refuse to make a return because his fees are not paid. 35. Where the service of summons and complaint is by any person other than the sher iff, then nothing more can be allowed than a reasonable compensation for the labor in making the service; there can be no allowance for constructive traveling or other services in such cases, and the affidavit should show the reasonableness of the charge. 36. Where $65 was charged for the service of the summons on fifty-two defendants, by a person not the sheriff, the charge being in amount equal to what would have been J the legal fees for such services, and the affidavit in respect to this item, stated the expense for service on said defendants, was necessarily incurred according to the registry kept by the deponent, and according to his best knowledge and belief, it was not allowed. § 139. (This section was first passed in 1849.) When jurisdiction of action acquired. From the time of the service of the summons in a civil action, or the allowance of a provisional remedy, the court is deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings. A voluntary appearance of a defendant is equivalent to personal service of the summons upon him. 1. Question. Has this section been amended since its passage in 1849 ↑ Answer. It has, in 1851, which amendment reads as above. 2. Q. How did this section read in 1849? A. As follows: § 139. [1849.] From the time of the service of the summons in a civil action, or the allowance of a provisional remedy, the court shall be deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings. Questions. 3. Q. When does the court acquire jurisdiction of an action and special proceedings? 4. Q. What is a general appearance, and its effect in conferring jurisdiction? 5. Q. Can one of several defendants not served with summons or complaint voluntarily appear in the action? 6. Q. Can the appearance of a sovereign or a sovereign state be compelled in our courts? 7. Q. Does the court which first acquires jurisdiction, by allowance of a provisional remedy or otherwise, dispose of the whole matter? 3. Q. When does the court acquire jurisdiction of an action and special proceedings? A. In Moore, Ex'tr, agt. Thayer, Adm'st'r, 6 How., 47, S. C., 10 Barb., 258, 3 Coae R., 176, General Term, December, 1850, EDWARDS, J., it was decided, that a suit is not commenced. where the service of the summons is by publication, until the expiration of the time for publication prescribed by the Code. By section 127 of the Code civil actions are commenced "by the service of a summons." But where an attachment has been issued, and no summons served, the court, by this section, have jurisdiction and control of the proceedings for the purpose of reviving and continuing the action in the name of the representative of a deceased party. In Treadwell agt. Lawlor, 15 Howard, 8, General Term, November, 1857, MITCHELL, J., said, that it has been repeatedly held that the attachment is the commencement of process, although no summons be served; the issuing of a summons alone is not the commencement of action, and would not aid in giving jurisdiction to the court until it is served; its issuing is not necessary to the validity of the attachment. This, also, has |