SERVICE AND PROOF OF. may be served, in case there is no person of mature age residing on the premises, by affixing a true copy of the summons upon a conspicuous part of said premises. 2 Rev. Stats., 4 ed., 757, § 32, subd. 2, as amended, Laws of 1857, ch. 684, § 1, Pub. Acts, 65. 3. An attorney or party having fixed his place of residence for the purposes of an action, in the manner prescribed by the Supreme Court, Rule 5, service by mail can be made by him only by mailing at the place thus indicated; and where the defendant, having specified White Lake as his residence, afterwards attempted to make a service by mailing his answer in the city of New York, it was held not a service by mail, but an attempt at personal service, which was to be treated as good, or not, according as the answer might reach the plaintiff's attorney before or after time expired. Supreme Ct., Sp. T., 1856, Hurd a. Davis, 13 How. Pr. R., 57. 4. The court cannot make an order for publication of the summons in an action against a non-resident defendant, under section 135 of the Code, subdivision 3,-which allows such order in an action on contract where the defendant has property in the State,—in a case where the property is only brought temporarily within the State with the design of removing it forthwith; and where, from the nature of the case, there is no agent or factor in charge of the property for the owner, through whom notice of the proceedings could reach the latter. Haight e. Husted, Ante, 348. 5. The provision of section 135 of the Code, subdivision 3, is in derogation of the rights of defendants, and should be strictly construed. Ib. 6. Whether personal service of a copy of the summons and complaint out of this State (under Code, § 135), confers on the court any jurisdiction whatever, in any case,- Query? Morrell a. Kimball, Ante, 352. 7. The official certificate of the sheriff of another State is not evidence in this State of the service of papers; his affidavit should be presented. Ib. 8. The trustees of a religious corporation and officers appointed by them, whose elections and appointments were in conformity with the formalities prescribed by the statute, and who have in fact acted and are acting as such, are at least officers de facto, upon whom alone can a valid service of process be made. Berrian a. The Methodist Society in New York, Ante, 424. 9. Section 134 of the Code, in authorizing service of summons upon a foreign corporation, to be made by delivering a copy to an officer of the corporation, simply provides a substitute for service by publication. Bates a. The New Orleans, Jackson & Great Northern Railroad Co., Ante, 72. SERVICE AND PROOF OF. Ib. 10. The case of Hulbert a. The Hope Mutual Insurance Company (4 How. Pr. R., 275), approved. 11. To sustain the service of a summons upon a foreign corporation, under section 134 of the Code, it must appear that such corporation owned, within this State, at the time of service, property such as was liable to be taken by attachment under sections 227-242. Ib. 12. It is within the discretion of the surrogate to determine what is sufficient proof of the service of a petition for admeasurement of dower and of notice of the day of its intended presentation; and if evidence is submitted to him which raises a fair presumption that the service called for has been made, this will sustain subsequent proceedings. Board a. Board, Ante, 295. 13. An admission of service of a petition for admeasurement of dower with notice of the day of its intended presentation, signed by the general guardian of minor heirs, is sufficient evidence of service to bind such heirs. Ib. 14. What is a sufficient identification of papers served, in an affidavit of service. Ib. 15. The mere fact that the report of commissioners to admeasure dower is filed in surrogate's office before the day named for their making report in the order of appointment, is not an irregularity which avoids subsequent proceedings, where no proceedings are had upon the report prior to the day named for the report to be made. Ib. 16. It is the service of the petition and notice in proceedings for the admeasurement of dower, and not the proof of service, which gives the surrogate jurisdiction; and hence an adjournment may be ordered on the day named in the notice for the presentation of the petition, if the papers have then been served, although no proof of service is then before the surrogate. Ib. 17. Recitals in the record of a judgment rendered in another State are not conclusive to show service of notice of the suit upon defendant. Black's Case, Ante, 162. 18. The record is, however, presumptive evidence of jurisdiction; and the party seeking to rebut the judgment offered against him by showing want of notice of the suit, must disprove every mode of lawful service of process, and must show clearly and explicitly that there was no lawful service. Ib. 19. Letters of administration having been granted to the widow of an intestate, a former wife filed a petition for a revocation of the letters, as being herself the lawful wife of the intestate at his decease. A decree of divorce rendered in chancery in New Jersey, between herself and the intestate, in 1850, was produced to defeat her claims. Held, that in order to rebut the decree on the ground that it was SET-OFF. not binding on the petitioner for want of notice to her of the proceedings, she must show affirmatively both that no process was persona" T served, and that none was served by copy; as allowed by the laws of New Jersey at that time. Ib. 20. It is not necessary that notice of appeal to the Common Pleas from a judgment of the general term of the Marine Court should be served on each of the justices; but service on the clerk is sufficient. Irwin a Muir, Ante, 133. 21. The notice of appeal in such case must state the grounds of appeal. Ib. 22. But an amendment may be allowed where the notice is deficient in this respect. Ib. 23. Mode of serving notice of protest in certain cases. Laws of 1857, ch. 416, § 3. APPEAL, 1, 4, 5, 6, 22, 23; NEW YORK MARINE COURT, 1, 2. SET-OFF. 1. A surety cannot, in an action against him by the creditor of his principal, recoup or set-off a claim to damages in favor of his principal against the creditor, although such claim might be a defence in an action against the principal. La Farge a. Halsey, Ante, 397. 2. Nor can the facts constituting such claim be plead by way of showing that the principal was not liable to the plaintiff. Ib. 3. Whether in such a case, if the principal be insolvent or colluding with the creditor, the surety may cause the principal to be brought in as a party, or may have proceedings stayed until the plaintiff has litigated the matter with the principal,-Query? Ib. 4. The provisions of the statute respecting set-offs (2 Rev. Stats, 154, § 12, subd. 6) are so far modified by the Code as to admit of a set-off or counter-claim on behalf of one or more of several defendants where a several judgment may be had in the action between the plaintiff and any one or more of the defendants;—as, in an action upon a promissory note. Hence in an action against two defendants on a note signed by one of them as principal and by the other as surety, a debt due from the plaintiff to the principal may be proved as a set-off. 1856, Newell a. Salmons, 22 Barb., 647. COUNTER-CLAIM, 1, 2; RECOUPMent. SPECIFIC PERFORMANCE. The Supreme Court has jurisdiction to decree the specific performance of a contract for the purchase of lands lying in another State, when the STATUTORY CONSTRUCTION. parties are residents of this State and subject generally to the jurisdiction of its courts. Such a jurisdiction existed in the Court of Chancery, and passed to the Supreme Court by the provisions of the present Constitution. (Massie v. Watts, 6 Cranch, 148; Shattuck v. Cassidy, 3 Edw. C. R., 152; Ward v. Arredondo, 1 Hopk. C. R., 213; Mead v. Merritt, 2 Paige, 402; Mitchell v. Bunch, Id., 606; Sutphen v. Fowler, 9 Id., 280.) The doctrine is, that this court, having jurisdiction of the person of the defendant, will, by its process of injunction and attachment, compel him to do justice, by the execution of such conveyances and assurances as will affect the title of the property in the jurisdiction within which it is situated. The present Supreme Court possesses the jurisdiction formerly exercised by the Court of Chancery. 1856, Newton a. Bronson, 3 Kern., 587. TRIAL, 1. STATUTORY CONSTRUCTION. 1. The first four and most important sections of the "act of 1855, for the Prevention of Intemperance, Pauperism, and Crime," which by its 24th section repealed all acts and parts of acts inconsistent with it, having been declared unconstitutional by the Court of Appeals; Held, upon demurrer to an indictment framed under the provisions of the Revised Statutes on the same subject, that the repealing act having been substantially annulled, the old law was continued in force. Supreme Ct., O. & T., 1856, The People a. Tiphaine, 13 How. Pr. R., 74. 2. Ordinarily, the time within which an act is required by statute to be done, is regarded as directory merely. Case of the Empire City Bank, Ante, 118. 3. But if the statute contains any words restraining the performance of the act afterwards, the naming of the time will be regarded not as directory, but as a limitation of authority. Ib. ABSENT AND ABSCONDING DEBTORS; PARLIAMENTARY LAW. STAY OF PROCEEDINGS. 1. A stay of proceedings pending the execution of a commission to take testimony is not a postponement of the cause to entitle a party to term fees. Supreme Ct., Sp. T., 1856, Shufelt a. Power, 13 How. Pr. R., 89. 2. Whether, notwithstanding a stay of proceedings, pending the execution of a commission a party may place the cause upon the calendar and notice it for trial, so that he may be in a situation to try it in case the commission should be returned,-Query? Ib. SUMMARY PROCEEDINGS. 3. The rule that where the same title to the same premises is drawn in question in a second suit, between parties or privies to the first, the court will order the costs of the first suit to be paid before it will suffer the second suit to proceed, does not apply to a suit brought by A., B., & C., heirs at law, to recover premises of their ancestor, while a judgment for costs upon dismissal of the complaint of A. in a former action to recover his one-third is unpaid. Such second suit is not to be regarded as between the same parties or their privies, nor are the premises to be regarded as the same. Supreme Ct., Sp. T, 1856, Ten Broeck a. Reynolds, 13 How. Pr. R., 462. 4. An undertaking on appeal from special to general term in which the sureties justify only in double the amount of the judgment, without reference at all to the security for costs, is deficient, and does not stay proceedings. Supreme Ct., Sp. T., 1857, Hoppock a. Cottrell, 13 How. Pr. R., 461. 5. Where execution on a judgment, entered upon the report of a referee, was issued before notice of appeal had been served, and no copy of an undertaking was served with the notice of appeal, a motion to stay proceedings until the decision of the appeal was denied. Supreme Ct., Sp. T., 1856, Staring a. Jones, 13 How. Pr. R., 423. SUMMARY PROCEEDINGS. 1. When a summons has been issued in summary proceedings to recover possession of demised premises, any person in possession of such demised premises, or any person claiming possession thereof, may, at the time appointed in such summons for showing cause, file an affidavit with the magistrate who issued the same, denying the facts upon which the said summons was issued, or any of those facts, and the matters thus controverted may be tried by the magistrate or by a jury; provided either party to such proceedings shall, at the time designated in such summons for showing cause, demand a jury, and at the time of such demand pay to such magistrate the necessary costs and expenses of obtaining such jury. 2 Rev. Stats., 4 ed., 757, § 34, as amended, Laws of 1857, ch. 684, § 2, Pub. Acts, 65. 2. Before the jury of inquiry in proceedings under the statute of forcible entries and detainers, the defendants offered to prove, by a witness whom they introduced, that the defendants, and those under whom they claim, were, and always had been, in the actual and peaceable possession of the premises in question, and that the complainant had never been in the actual possession of such premises. But the judge decided that the defendants could not, in that stage of the proceedings, show the actual possession of the premises in question in them |