complaint, the plaintiff may proceed against the defendant served, in the same manner as was done previous to the Code, that is, enter judgment against all, and issue execution against their joint property, and the individual property of the defendant served. (This decision was made under this section, as it originally stood previous to amendment.-Ed.) 30. A judgment by confession without action, can only be entered against the person making the confession.

31. One of two partners or joint debtors, cannot confess judgment for both. Such judgment is probably valid, as against the party signing, but is void as against the other defendant, and cannot be enforced against the joint property.

32. One of two partners confessing judgment for a partnership debt, by such confession makes the debt his individual debt.

33. One defendant, a joint debtor, served with process, may, by an offer under § 385, bind his co-defendant, and such judgment may be enforced against the joint property of all.

34. "Enforced," as used in this section, is used to embrace all the legal means of collecting a judgment, including “proceedings supplementary to execution,” which are as much a mode of enforcing a judgment as the execution itself.

35. In a suit against three obligors on a joint and several bond, although the complaint describes the bond as joint, without stating it to be also several, on its appearing in the suit that the instrument is several as well as joint, the plaintiff may, under this section, enter judgment against any one of the defendants, that he could enter judgment against, if he were sued alone.

36. This section allows a several judgment to be entered against any defendants against whom a several suit might have been brought.

37. Subdivision 3 of this section was intended to change the former rule, that in all actions ex contractu, at common law, against several defendants, the plaintiff was required to make out a joint cause of action against all the defendants, or he must fail as to all.

38. The third subdivision of this section applies to all actions indiscriminately, whether founded upon contract or tort

39. According to to the third subdivision of this section, it is immaterial whether the complaint alleges a joint liability only, or one which is both joint and several, the right of recovery is to be regulated in this respect by the proof, and not by the allegations in the complaint.

40. The object of this subdivision of this section obviously is to prevent a plaintiff who proves a good cause of action against part of the defendants, but not against the others, from being put to the delay and expense of a new action. It simply applies to actions upon contract the same rules which at common law were applied to actions for

torts.

41. In an action upon contract against several defendants, if some, either jointly or severally, deny the material allegations of the complaint, or any of them, judgment may be given against some of the defendants and in favor of others.

42. In an action against two partners under a firm name, for services rendered the firm, where the summons was served only on one defendant, and where only the defendant served answers by a denial of the allegations in the complaint, and the plaintiff proceeds against both, it is not sufficient, to entitle the plaintiff to a verdict against both, to prove that the services were rendered for the firm, and that the defendant who has answered was a member of it, but he must also prove that the other defendant was also a member of the firm.

43. "Defendants severally liable," as used in subdivision 2 of this section, must be construed as meaning defendants liable separately from the defendants not served. though jointly as respects each other.

44. In an action against three persons as partners, one not being served with the

summons nor appearing, the plaintiff is entitled to judgment against the other two, upon evidence that they alone constituted the partnership.

45. Since the statute of 1833, in actions against joint debtors, it was regular, where only one was served with process, to take judgment against both, and enforce such judgment against the joint property of both, and the individual property of the one served. This section continues the same practice.

46. A plaintiff cannot be non-suited because he has brought too many parties into

court.

47. If a plaintiff could recover against any of a number of defendants, if sued alone, the recovery against them will be proper, although other defendants may be joined against whom no liability is shown.

48. Where the complaint was against five defendants, as common carriers, and the proof showed a cause of action against two, and no liability on the part of the others, it was no error of the judge to refuse to direct a verdict or order judgment in their favor.

137. When service deemed made in case of publication. [Same as 116 in 1848.]

In the cases mentioned in section 135, the service of the summons shall be deemed complete at the expiration of the time prescribed by the order for publication.

1. Q. When is the service of summons by publication effected?

A. In Moore. Ex'tr, agt. Thayer, Adm str, 6 How., 47, General Term, December, 1850, EDWARDS, J., it was decided, that the service of a summous by publication is not effected until the expiration of the time for publication. The Judge said: The ground upon which this motion was decided at the special term was, that the summons had not been served at the time of the decease of the defendant Duncan McEwing, Jr. We concur in the opinion which was expressed upon the decision of the motion, that, as a general rule, 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.

In Tomlinson agt. Van Vechten and others, 6 Hone., 199, Special Term, August, 1851, MARVIN, J.. it was decided that a defendant has twenty days to appear and answer after the expiration of the time prescribed by the order for publication of the summons. The service of the summons is not complete until the expiration of that time. The same rule applies in cases of publication where service has been personally made out of the state. The Judge said: The application is premature. The defendants have twenty days within which to appear and answer after the expiration of the time prescribed by the order for publication. The service of the summons is not complete until the expiration of that time. (Code, § 137.) I have also held, in cases where the publication of the summons had been ordered, and service of a copy of the summons and complaint had been personally made out of the state, that the defendant had twenty days to appear and answer after the expiration of the time prescribed in the order for the publication. That such personal service out of the state was only equivalent to the publication of the suminous and the deposit of a copy of the summons and complaint in the post-office. (§ 135.)

In Dykers, Alstyne & Co. agt. Woodward & Hallam, 7 How., 313, Special Term, December, 1852, ROOSEVELT, J., it was decided, that the Code (§ 135) provides for the service of a summons on a non-resident defendant by an order and publication six weeks; and, "when the publication is ordered, personal service of a copy of the summons and complant out of the state is equivalent to publication." And this section declares that this species of service (by publication) "shall be deemed complete at the expiration of the time prescribed by the order for publication" The Judge said: Being a non-resident, the summons, as against her, was ordered to be served by publication." But before the prescribed six weeks had expired, the summons and complaint were served person

ally in Connecticut. More than twenty days have elapsed since that service, but not since the expiration of the six weeks. The Code says (§ 143) the answer "must be served within twenty days after the service of the copy of the complaint;" or (§ 128) within twenty days after service of the summons; and that if the defendant (§ 146) fail to answer within the prescribed twenty days the plaintiff may apply for judgment. Has the defendant Hallam then failed to answer? or, in other words, when is she deemed to have been served? Service is either within or without the state; in the former case it must be personal; in the latter it may be either personal or by publication. (§§ 99, 127, 134, 135.) Section 135 provides that where a defendant cannot be found within the state the plaintiff may obtain an order, directing that the service be made by the publication of a summons," not less than once a week for six weeks; and section 137 declares that this species of service "shall be deemed complete at the expiration of the time prescribed by the order for publication." When, therefore, the Code says that personal service of a copy of the summons and complaint out of the state is equivalent to publication," it means equivalent to complete service, so as to make the twenty day limitation of the period to answer commence running from the day of such service. The six successive weekly insertions of the advertisement are not with the view of giving time to a distant party to answer, but to increase the chances of his getting notice of the suit. Two or three insertions the law presumes might be overlooked. It requires at least six at intervals of a week each, to raise a legal presumption of notice; and even then it is but a presumption. Still, for the purpose of rendering the proceedings valid, it is allowed to have the effect of actual notice. Held, that the twenty days to answer begins to run from the day of the personal service out of the state. [This case was approved, Sherman agt. Strakosh, Transcript, March 3, 1865.]

This

But in Abrahams agt. Mitchell, 8 Abb., 123, Special Term, Morch, 1859, INGRAHAM, J.. it was decided, that when an order for service of summons upon a non-resident by publication is obtained, if personal service out of the state is effected. it is unnecessary to proceed to make publication, and to deposit summons in the post office. A personal service takes the place of those steps. But it seems that the twenty days within which to answer, does not commence to run until the expiration of the time for publication, as directed by the order. The Judge said: The defendant Mitchell was a non-resident, and proceedings were commenced against her as such, to foreclose a mortgage. After the order of publication was obtained, the summons and complaint were alleged to have been served personally on the 1st of July, 1858, in New Jersey. The publication and deposit of a letter in the post office, was omitted, and judgment was entered in October, 1858: the order of reference was made on 30th September, 1858. The question is submitted on this motion, whether the publication of the commencement of the action and the deposit of notice in the post office, is rendered unnecessary by the personal service of the summons and complaint on the defendant, out of the state. The words of the statute are, "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 natural and ordinary understanding of this provision is, that personal service out of the state, takes the place of publication and deposit in the post office: the object of the publication, as well as of the notice by mail, is to inform the defendant that the action has been commenced. becomes unnecessary, if the defendant obtains the notice in any other way. By personal service out of the state of the summons and complaint, it cannot be doubted that the defendant is more certainly informed of the commencement of the action, then she would have been by a publication in the paper, which she might never see, or by a letter in the post office, which she might never receive. The case of Litchfield agt. Burwell (5 How. Pr. R., 346), holds that personal service out of the state, merely dispenses with the service by mail, and that the order for publication and actual publication is still necessary. In Tomlinson agt. Van Vechten (1 Code R., N. S., 317), the contrary was held, and it was there decided that personal service out of the state was equivalent to the publication of the summons, and deposit of the summons and complaint in the post office. The latter seems to me to be in accordance with the statute. Where the defendant is out of the state, no jurisdiction over him can be obtained except by virtue of the provisions. The statute, therefore must be strictly followed. This provides that when the debtor resides out of the state, the service may be made by publication. (Code. § 135.) This service is not complete until the time of publication, as directed by the order has expired. From that time the defendant has 20 days to appear and answer, and after the 20 days have expired, the plaintiff may take judgment. The statute there provides an equivalent for the publication and deposit in the post office; but the rest of the proceeding must be under this section. The plaintiff may publish and deposit the copy, summons, &c., in the post office, or he may adopt the equivalent for the publication and deposit by a personal service of the summons and complaint out of the state; but in either case this only completes the service of the process; and by this section of the Code, in both cases, whether of pullication or service out of the state, the service is to deemed complete only at the expiration of the time, prescribed by the order of publication. The time to answer only commences when the service is complete, and it follows therefore necessarily, that in both

cases the time for appearance and for answering, does not expire until 20 days after the service is perfected.

In Richardson agt. Bates, 23 How., 516, General Term, September, 1861, SCRUGHAM, J., it was decided, that where an order of publication of the summons is made for six weeks, once in each week, the service is not complete until the expiration of the six weeks, or for ty-two days, although the publication be made six times in as many successive weeks, short of that period. That is, the plaintiff cannot enter judgment until twenty days after the expiration of six weeks or forty-two days, when the service is completed. The Judge said: An order was made in this action for the service of the summons by publication, prescribing six weeks as the time for such publication; and at the expiration of fiftyeight days from the first publication, judgment was entered against the defendant, upon affidavits showing that the summons had been published once in each week, for six suecessive weeks, and that twenty days had expired since the last publication. The right to proceed against a defendant, by publication of summons, is derived from the statute alone, and its provisions must be strictly followed. Section 135 of the Code, provides that the order shall direct the publication for such length of time, as may be deemed reasonable, fixing the shortest period at six weeks, and directing that the publication shall be made not less frequently than once a week. Section 137 declares that the service shall be deemed complete at the expiration of the time, prescribed for the order of publication. That time in this case was six weeks; and although publication was made six times in as many successive weeks, in a period less than six weeks or forty-two days, the service of the summons did not become complete until that time had expired. The defendant's time to answer did not begin to run until the service was complete; he then had twenty days; and as the judgment was entered before they expired, it was irregnlar.

What is the result of the decisions under this section?

1. (2.) The service of a summons by publication is not effected until the expiration of the time for publication.

2. A defendant has twenty days to appear and answer, after the expiration of the time prescribed by the order for the publication of the summons.

3. The service of summons is not complete until twenty days after the expiration of the time prescribed by the order for publication. The same rule applies in cases of publication, where personal service has been made out of the state.

4. Section 135 provides for the service of a summons on a non-resident defendant, by an order and publication six weeks; and, "when publication is ordered, personal service of a copy of the summons and complaint out of the state, is equivalent to publication.” 5. Service of summons by publication "shall be deemed complete at the expiration of the time prescribed by the order for publication.

6. Where publication is ordered "personal service out of the state is equivalent to publication; it means equivalent to complete service, so as to make the twenty day limitation of the period to answer commence running from the day of such service.

7. The six successive weekly insertions of a summons, ordered to be published, are not with a view of giving time to a distant party to answer, but to increase the chances of his getting notice of the suit.

8. The law presumes that two or three insertions of a summons might be overlooked, so it requires at least six, at intervals of a week each, to raise a legal presumption of notice. The twenty days to answer begins to run from the day of the personal service out of the state.

9. When a summons is ordered to be served upon a non-resident by publication, if personal service out of the state is effected, it is unnecessary to proceed to make publication, and deposit the summons in the post-office; but the twenty days within which to answer, does not commence to run until the expiration of the time for publication, as directed by the order.

10. If the summons was ordered to be published, the service is complete only at the expiration of the time mentioned in the order of publication, whether personal service out of the state was had o not; therefore a defendant ordered to be served by publica

tion, has twenty days after the expiration of the time for publication in which to answer, in either case.

11. When an order of publication of the summons is made for six weeks, once in each week, the service is not complete until the expiration of the six weeks, or forty-two days, although the publication be made six times in as many successive weeks short of that period.

12. The plaintiff cannot enter judgment until twenty days after the expiration of eix weeks, or forty-two days, when the service is completed.

138. Service of summons how proved.

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.

1. Question. Has this section been amended since its passage in 1848

Answer. It has, in 1851, which amendment reads as above.

2. Q. How did this section read in 1848?

4. As follows:

§ 117. [1848.] Proof of the service of the summons, and of the complaint or notice, if any, accompanying the same, shall 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, if the same shall have been deposited; or

4. The written admission of the defendant:

In case of actual service, the certificate or affidavit shall state the time and place of the service.