The time of receiving a copy of the complaint, (when served by mail) is not the service, but the time of mailing it. Van Horne, President, &c., agt. Montgomery and others, 5 How. 238. But see note to section 411. Where Sunday is an intervening day, time. King vs. Dowdall, 2 Sand. 131. How. 28. it is counted in computing statute Contra, Whipple vs. Williams, 4 The day of service is to be excluded, and the first day of term is included. Easton vs. Chamberlain, et al., 3 How. 412; Judd vs. Fulton, 4 How. 298. CHAPTER XI. Notices, and filing and service of papers. Notices and other SECTION 408.) Notices and other papers, how served on party or attorney. 410. 411. 412. When and how served by mail. Double time when served by mail. 413. Eight days notice of motion, &c., before court or judge when personally served. 414. Where papers need not be served on defendant. 415. Service of papers where party resides out of the State. 416. Summons and pleadings to be filed within ten days after 417. 418. service. Service, where party appears by attorney. This chapter not to apply to summons or process, or to papers to bring party into contempt. § 408. [Sec. 369.] Notices shall be in writing; and no papers how tices and other papers may be served on the party or at served on party or attorney. The same. torney, in the manner prescribed in the next three sections, where not otherwise provided by this act. § 409. [Sec. 370.] The service may be personal, or by delivery to the party or attorney on whom the service is required to be made, or it may be as follows: 1. If upon an attorney, it may be made during his absence from his office, by leaving the paper with his clerk therein, or with a person having charge thereof; or when there is no person in the office, by leaving it, between the hours of six in the morning and nine in the evening, in a conspicuous place in the office, or if it be not open, so as to admit of such service, then by leaving it at the attorney's residence, with some person of suitable age and discretion. 2. If upon a party, it may be made by leaving the paper at his residence, between the hours of six in the morning and nine in the evening, with some person of suitable age and discretion. There is no law to authorize a service to be made on an agent for a party where such agent is not an attorney, and cannot regularly act as such. Weir agt. Slocum, 3 How. 397. how served § 410, [Sec. 371.] Service by mail may be made, where When and the person making the service and the person on whom by mail. it is to be made reside in different places, between which there is a regular communication by mail. The irregularity of service is waived, if the paper is received and acted upon. The Georgia Lumber Co. vs. Strong, 3 How. 246. § 411. [Sec. 372.] In case of service by mail, the paper The same. must be deposited in the post office, addressed to the person on whom it is to be served, at his place of residence, and the postage paid. Where service is made by mail in a place other than that where the party making the service resides, it is not good service, except from the time actually received. Schenck agt. McKie, 4 How. 246; Peebles agt. Rogers, 5 How. 208; See note to section 407. Where the paper is placed in the proper post-office, correctly addressed, postage paid, the service is complete. Shenck agt. McKie, 4 How. 246. Noble agt. Trotter, id. 322. Lawler vs. Saratoga Mutual Fire Ins. Co.' 2 Code Rep. 114. Where service of notice of justification of sureties would carry the time beyond the number of days allowed, a judge's order may be obtained extending the time. Dresser agt. Brooks, 5 How. 75. time when mail. Amended § 412. [Sec. 373.] Where the service is by mail, it shall Double be double the time required in cases of personal service. served by § 413. [Sec. 374.] Notice of a motion, or other proceed-1849. ing, before a court or judge, when personally served, shall notice of be given at least eight days before the time appointed before therefor. A motion may be noticed for a day in term special, by showing cause. Whipple vs. Williams, 4 How. 28. See section 402. Eight days motion, &c. court or judge, when per sonally served. Amended 1849. pers need § 414. [Sec. 375.] Where a defendant shall not have de- When pamurred or answered, service of notice or papers, in the or- not to ben dinary proceedings in an action, need not be made upon ended [NOTES.] 11 served on defendant. 1849. Service of papers ty resides out of the him, unless he be imprisoned for want of bail, but shall be made upon him or his attorney, if notice of appearance in the action has been given. § 415. [Sec. 376.] Where a plaintiff or a defendant who where par- has demurred or answered, or gives notice of appearance, resides out of the state, and has no attorney in the action, the service may be made by mail, if his residence be known, if not known, on the clerk for the party. state. Amended 1849. Summons and plead § 416. [Sec. 377.] The summons, and the several pleadings to be ings in an action, shall be filed with the clerk within ten filed with in ten days days after the service thereof, respectively, or the adverse after ser vice. Service where par party, on proof of the omission, shall be entitled, without notice, to an order from a judge that the same be filed within a time to be specified in the order, or be deemed abandoned. The court will permit a pleading to be filed, after the time limited in an order to file, where the omission is explained. Short vs. May, 2 Sand. 639. § 417. [Sec. 378.] Where a party shall have an attorney ly appears in the action, the service of papers shall be made upon the by attor ney. ter not to attorney, instead of the party. This chap- § 418. [Sec. 379.] The provisions of this chapter shall Summons not apply to the service of a summons, or other process, apply to or process, or to papers to bring party into contempt. Duty of sheriff and serving or process, and how enforced. or of any paper to bring a party into contempt. CHAPTER XII. Duties of sheriffs and coroners. SECTION 419. Duty of sheriff and coroner in serving or executing process, and how enforced. § 419. [Sec. 380.] Whenever, pursuant to this act, the coroner in sheriff may be required to serve or execute any summons, procuing order, or judgment, or to do any other act, he shall be bound to do so, in like manner as upon process issued to him, and shall be equally liable in all respects for neglect of duty; and if the sheriff be a party, the coroner shall be bound to perform the service, as he is now bound to execute process, where the sheriff is a party; and all the provi Amended 1949. sions of this act relating to sheriffs shall apply to coroners when the sheriff is a party. CHAPTER XIII. Accountability of guardians.. SECTION 420. Guardian not to receive property until security given. perty unti security § 420. [Sec. 381.] No guardian appointed for an infant, Guardian shall be permitted to receive property of the infant, until he ceive proshall have given sufficient security, approved by a judge of given the court or a county judge, to account for and apply the same, under the direction of the court. Supreme Court Rules, 56 to 66. CHAPTER XIV. Powers of referees. SECTION 421. Referees authorized to administer oaths and to exercise powers now vested in referees by law. to Authorised pro- and to ex § 421. [Sec. 382.] Every referee, appointed pursuant this act, shall have power to administer oaths, in any ceeding before him, and shall have generally the powers now vested in a referee by law. CHAPTER XV. Miscellaneous provisions. SECTION 422. Papers lost or withheld, how supplied. 423. Where undertakings to be filed. 424. Judgment on bond and warrant of attorney, excuted before 425. Time for publication of notices, how computed. to administer oaths, ercise pow ers now vested in referees by law. or withheld § 422. If an original pleading or paper be lost or with- Papers lost held by any person, the court may authorize a copy there- how sup of to be filed and used instead of the original. plied. Passed 1849. dertakings § 423. The various undertakings required to be given where unby this act, must be filed with the clerk of the court, un- to be filed. less the court expressly provides for a different disposition Passed thereof, except that the undertakings provided for by the 1849. chapter on the claim and delivery of personal property, shall after the justification of the sureties, be delivered by Judgment on bond the sheriff to the parties respectively, for whose benefit they are taken. § 424. Upon any bond and warrant of attorney executed warrant of and delivered before the first day of July, 1848, judgment attorney executed 1, 1848. before July may be entered in the manner provided by sections 382, 383 and 384, upon the plaintiff's filing such bond and warrant of attorney, and a statement signed and verified by himself, in the form prescribed by section 382. Passed 1819. Time for publication how com puted. § 425. The time for publication of legal notices shall of notices be computed so as to exclude the first day of publication, and include the day on which the act or event, of which notice is given, is to happen, or which completes the full period required for publication. Passed 1849. § 426. Printed copies in volumes, of statutes, code, or other written law, enacted by any other state, or territory, or foreign government, purporting or proved to have been published by the authority thereof, or proved to be commonly admitted as evidence of the existing law in the courts and judicial tribunals of such state, territory, or government, shall be admitted by the courts and officers of this state, on all occasions, as presumptive evidence of such laws. The unwritten, or common law of any other state, or territory, or foreign government, may be proved as facts by parol evidence; and the books of reports of cases adjudged in their courts, may also be admitted as presumptive evidence of such law. |