New-York daily tribune., 1851-07-16

ally. .r
the summons Is 10 be made cannot after due diii-
peDce be found within the state, and that fact ap-
pears Dy affidavit 10 the satisfaction OF the court or
Judge thereof or OF the county Judge OF the county
where the trla i 20 BE had and Il II Ike manner a-
pears that cause CT action exists against the defend
ant IN respect TO whom the seTsCe j. 10 oe made OF
that he il proper party - an acton relating 70 TeaI
property Tins state such court or Judge may grant
an order tina: the service &C made Oy the publication
Of summons N either Of tRe following cases.
l. Where TIC defendant IS 4 foreign corporation,
has property within the State or Ibe cause OF acton
arose therein -
9 Whore the defendant beng a resident Of ,hls
state has departed therefrom. with intent 10 tetraud
his creditors or 10 avoid the seTVlce oi summons
or keeps himself concealed therein with the Ike IN
tent. 60.
3 Where he is not resident OF tals state, but has
prOr@rty therein and the action arises on contract
and the court jurisdiction OF the subject OF the az
ton. -. ,
sonaI nroperv m this State and the defendant has
claims hen or interest actual or contingent therein,
or the relief demanded CONSISTS wholly or partly IN
excluding the defendant from any interest or len
5 Where the action IS for divorce, in the cases
prescribed by law
The order must direct the publication to be made
In two new spapers 10 be designated most likely to
give notice 10 the person to be served and for such
length of time as nav be deemed reasonable, not
less than week fer SIX weeks. In case OF pub
hcalOn the Court or Judge must also direct copy
of the summons and complaint TO be forthwith de-
poslfed IN the Post-Ofce. directed 10 the person to
be served a. MS place OF residence. unless Il appear
that such residence is neither known 10 the party
making the application; nor can %th reasonable dill
gence be ascertalned by him. When publication Is
ordered, personal service of copy OF the summons
and complaint ont of the State is equivalent 10 pub
hcation and deposite IN the Post'Ofice
The defendant against whom publications. Is ordered
or ms representatiYes on application, and sufficient
ebO inn bCfOrp
allowed 10 defend the action and except IN an action
for divorce, the defendant. against whom publication
is ordered or his representatives, may IN IKE manner
upon good cause shown be allowed 10 defend aiter
Judgment or AT anv time within wear after notice
thereof and within seven years alter It's rendlOn on
such terms asmay be just and If the defense be sue
cessul. and the uden ent, or any paTl theIeo nave
been collected or otherwlsed enforced, such restiu-
uon may thereupon be compelled AS me tourt a.
reefs but the title to property sold under such ludg-
men 20 purchaser IL good faith, shall not be there-
by affected And IN all cases where publication IS
made the complaint must be first filed. and the sum-
mons, as published must state the time ana place oil
such filing
tI36 Where the action Is against two or more de-
PENDANTS and the summons Is served on one or more
but not On all OF them the plainth may proceed as
follows
J. II the acton be against defendants Jointly In
debted upon contract, he MAY proceed against the
defendant served unless the Court otherwise direct
and If he recover Judgment II may be entered against
all the defendants thus Jointly indebted so far only
as that It NAV be enforced against the lont property
of ALL and the separate property OF the defendants
served, and. # they subject 20 arrest, against the
persons OF the defendants served, OF
9 If the action be against defendants Sevefdly
liable he may proceed against the defendants served
IN the same manner as II they were the only defend
ants.
3 If al the defendants have been served, ludg-
ment NAV be taken against any or either OF them
severally. when the plaintiff would be entitled 10
judgment against such defendant or defendants. II
H. IaI fa. mr. 4pN al
alone.
1876. Proof of the service of the summons, and
of the complaint or notice, II any accompanying the
same mast be as follows
l. II served by the Sheriff, his certificate ithereoi
= II by any other person. his affidavit thereof or
g. In case OF publication, the affidavit of the printer,
or his foreman, or prncpc clerk snow ing thc same
and an affidavit of deposit OF copy OF the summons
IN the post-ofice, rs required by law, If the same
shall have been deposited or
4 The written admission OF the defendant
In case of service, otherwise than oy publication,
the certificate, affidavit or admission must state the
time and place of the service.
tI3g From the time of the service OF the summons
in civil action. OF the allowance OF provisional
remedy the Court Is deemed To have acquired Juris-
dicton, and 10 have control of all the subsequent
proceedings. voluntary appearance OF defendant
is equivalent 10 personal service OF the summons
Q i42 sub . plain and concise statement Of the
facts constituting cause OF action without unneceS-
Sary repetition.
ol4q The answer of the defendant must contain
l. 4 specific denial of each material allegation OF
The complaint conlroverted by the defendant. accord
ing 10 his know ledge information or belief. oT of any
knowledge or information thereof Sufhcient To form
hehei.
. rialn and consisc statement of any new mat
ter constituting defense or set of without unneces-
Say repetition
l52 sham and irrelevant answers and defenses
may oc strihen out motion and upon such terms
the Court NAV III their discretion impose
@ 1873. When the answer contains new matter con-
si,utng ociense or set on the plaintiff may, within
twenty day :, reply TO such new matter, denying spe
officially each allegation coniroyerted by HIM, accord
Ing 20 he ccgo. information or belief, or any
knowledge or information thereof sufficient to form
belief ana may allege, IN PLAIN and concise man
ner without unnecessary repetition, any new matter,
mol Inconsistent with the complaint, constituting
defense 10 such new matter m the answer or he
may dcmur 10 the same for nSuihclcncy. stating IN
his demurrer the grounds thereof and the plaintiff
MAY deInur 10 one or more OF several dCfenSes and
set of stt mp ia the and reply 10 the residue.
l5t. Every pleading IN a Couri OF Record must be
subscribed by the party, or his attorney. ana when
any pleading is verified. every subsequent pleading,
except q demurrer. mast be verified also.
l5, The venfca,ion must be to the effect that
same Is tired 10 the know ledge OF the person making
except a. TO those matters stated on Information and
telei anu IS 10 those matters he believes IL be true.
and mus; be 5y tie affidavit OF The party or II there
be seVtra parties united Ia interest, and pleading to-
e,ther. By one a; least OF such parties acquainted
With Tie 'aclS, i such party % within the county
where he attorney re>idos, and capable oi making
'he affidavit The affidavit nay also be made by the
agent or attorney II The action or defense be founded
upon awriitn instrument for ihc payment OF money
Only. and such instrument be N possession OF the
agent attorney. all thV material allegations OF
the pleading te within The personal know ledge OF the
agent OF attorney. When The pleading = verified BY
On. other person than he party he shall set forth n
The affidavit H. know edge ar The grounds Of hls be
Nei OF the subject and NE reasons why u IS not
a = "A
the trtcaiion may De made Dy iii officer thereof
and when The stale or any officer thereof IN ~ be-
half. Is party. he Gerincaiou may be made by any
person acquainted VIII lie facts. The yerihcdtiOn
may te omitted when an admission of the truth OF
The alt cations might subject the party 70 prosecution
'or felony. AID uo pleading can Be- used IN ID cTIm-
Na prosecution against tie party proof o. .act
admitted alleged N such p.eailns.
.5S. IL shall not oe necessary for party 10 set
forth lu pleading. IA, items Oi al account therein
M eyed tul he shall deliver 10 tie adverse party