therefore, of the two, the more conducive to convenience, to introduce the necessary information as to the forms required in these cases, at an earlier stage of the work.

Interlocutory proceedings may be reduced under the two general heads of motions and orders, and their necessary preliminaries. The merely formal machinery of a suit includes a variety of subjects of general application. The latter will be taken first, and the former treated of at the conclusion of the chapter.

Written notices to the adverse party are, in the first place, necessary in connection with almost every proceeding in every stage of the cause. The essentials of such notices will be treated of hereafter, in connection with each subject. All must, however, under sec. 408, be in writing, and be duly served on the adverse party or attorney.

The mode of service of notices, of whatever nature, and of papers in the suit in general, is thus prescribed by section.

409:

$409. 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.

Where, however, the party has already appeared by attorney, service of all papers whatsoever must be made on the latter. The provisions of sec. 417 are express on the subject, as follows:

§ 417. Where a party shall have an attorney in the action, the service of papers shall be made upon the attorney, instead of the party.

Service on the party of the ordinary papers in a suit, after an attorney has appeared for him, will not be good. In Tripp v. De Bow, 5 How. 114, 3 C. R. 163, a notice of appeal served on

the party, instead of the attorney, was decided to be bad, and such appeal was accordingly held to be a nullity. It was also held that the objection might be taken advantage of at any time, provided the party served had not appeared and answered, or proceeded in such a manner as to waive the defect, and give the court jurisdiction. The attorney of the party must, of course, be the attorney of record. Service on a mere agent will not be available.-V. Weare v. Slocum, 1 C. R. 105.

The following exception from the above provision is effected by sec. 418:

§ 418. The provisions of this chapter shall not apply to the service of a summons or other process, or of any paper to bring a party into contempt.

Whenever, therefore, a proceeding is of a penal nature, or any specific act is commanded or forbidden to be done, the service must be personal. In a large proportion of these cases, it will, however, be prudent to notify the opposite attorney also.

Where a defendant has not demurred or answered, service of notices or papers, in the ordinary proceedings in an action, need not, under sec. 414, be made upon him at all, unless he be imprisoned for want of bail, or unless a regular notice of appearance has been given. In this latter case, service must be made on him or his attorney in the usual manner.

The mode of service being so clearly prescribed by sec. 409, as before cited, it would be useless to repeat the directions there given. The form of an affidavit of service adapted to the different states of circumstances mentioned in that section, will be found in the Appendix. Service may also be proved by the admission of the attorney, to procure which is an usual and convenient practice. One signed by the party would also be valid, but is less unobjectionable, inasmuch as the court cannot take judicial notice, but may, on the contrary, require actual proof of his signature.

In order to the due regularity of service on a clerk, or person in charge, it should be ascertained that the attorney is absent from his office at the time, as, if not, it may be questionable whether service upon any other party will be strictly regular. It is clear that a notice cannot be properly served when the office is not open, by passing it under the door or otherwise, and clear also that service upon a clerk, or person in charge is not regular, if made elsewhere than in the office itself.

The limitations as to hours, in cases of service at the residence of either party or attorney, should likewise be carefully noted. Although in strictness, a paper must be served within due time, or otherwise the service will be null; still, where due diligence has been used, and that service has been rendered impossible by the act of the intended recipient, the court will not allow him to take advantage of his own wrong, and will hold subsequent service at the earliest possible period, to be regular. Thus, in Falconer v. Ucoppel, 2 C. R. 71, where, on the last day for serving an amended answer, the defendant endeavored, in office hours, to make the service, both at the plaintiff's office and dwelling, but both were closed, and no one could be found to receive it but, on the following day, the same was served personally, with notice of the attempted service of the day before, it was held that, in making the best possible service, the defendant was regular, and the plaintiff was fixed with the costs of the motion; of course this doctrine is only adapted to extreme cases where full diligence has been used, and the conduct of the other side has been evidently evasive. Unless the moving party has made every possible effort, and fails, not from want of any exertion of his own, but from the absence or bad faith of the opposite party, it would, on the contrary, be most unsafe for him to rely on obtaining relief of this description. Where a paper has been refused by an attorney as served out of due time, a subsequent service on his clerk, in ignorance of the refusal of his principal, was held of no avail; O'Brien v. Catlin, 1 C. R. (N. S.) 273.

In sec. 415, provision is made for the case of a party who has appeared in the action, but who resides out of the state, and has no attorney within it. In this case, the service may be made by mail, if his residence be known; if not, on the clerk for the party. The last clause is somewhat obscure, and seems, in fact, contradictory to previous portions of the Code, which expressly provide that, as regards the summons on the one hand (sec. 128), or the notice of appearance on the other (sec. 130), a place for service within the state must be named; service at which place would doubtless, under such circumstances, be held as regular, both generally, and under rule 5, of the supreme

court.

It is clear that service on a Sunday is not admissible under any circumstances, and, if made, will be irregular.-V. Pulling

v. The People, 8 Barb. S. C. R. 384; Field v. Park, 20 Johns. R. 140; and other cases hereafter cited.

The above observations are applicable to those cases in which the parties or attorneys on both sides reside in the same place. When this is not the case, service by mail becomes admissible, except as regards process or papers to bring a party into contempt; sec. 418.

The mode in which service by mail may be made, is thus prescribed by sections 410, 411, and 412.

§ 410. Service by mail may be made, where the person making the service and the person on whom it is to be made reside in different places, between which there is a regular communication by mail.

§ 411. In case of service by mail, the paper 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.

§ 412. Where the service is by mail, it shall be double the time required in cases of personal service.

The cases in relation to service of this description are nu

merous.

In Schenck v. M'Kie, 4 How. 246, 3 C. R. 24, the following principles are laid down:

1. That such service must be made by the attorney himself, and that he cannot employ an intermediate agent.

2. That the paper must be posted at the residence of the attorney, and not elsewhere; properly addressed, and the postage paid.

3. That, if these requisitions be duly complied with, the service will be deemed regular, and the party to whom the notice is addressed, will then take the risk of the failure of the mail.

On these principles, a copy answer deposited by the agent of the attorney, in a post-office in a different town from that in which the attorney resided, was held not to be regularly served, and it was decided that the plaintiff had a right to enter up judgment in the meantime, and to disregard its subsequent arrival. Where, however, the papers, though unduly mailed, were actually received within time by the attorney for the opposite party, the service was held to be good.-Peebles v. Rogers, 5 How. 208; 3 C. R. 213. The third of the above principles, as laid down in Schenck v. McKie, was fully sustained by the court, in the subsequent case of Chadwick v. Brother, 4 How. 283, in

which a notice of adjustment of costs, and the adjustment under it, were decided to have been regular, when the former was posted by the defendant's attorney in due time; and this, notwithstanding such notice was not actually received by the plaintiff's attorney, until the day after such adjustment had taken place, owing to some irregularity on the part of the postoffice authorities. The same conclusion was come to in Van Horne v. Montgomery, 5 How. 238. In Noble v. Trotter, 4 How. 322, it was further decided that, where a copy of an answer had been posted by the defendant's attorney on the very last day allowed for its service, and after the mail had left on that day, in consequence of which the plaintiff's attorney did not receive it till two days after the time had expired, such service was nevertheless good; a judgment entered up, in the meantime, by the plaintiff's attorney, was accordingly set aside. The case of Maher v. Comstock, 1 How. 87, to the contrary effect, is overruled, and the cases of Brown v. Briggs, 1 How. 152; Radcliff v. Van Benthuysen, 3 How. 67; and Jacobs v. Hooker, 1 Barb. R. 71, under the old practice, are cited in the course of the decision, in support of the view so taken.

The same doctrine was also distincly held in Gibson v. Murdock, 1 C. R. 103, with the addition that any party taking judgment between the expiration of the time, and the actual arrival of the answer, would take his order for such judgment" at his peril, and liable to be made irregular by its subsequently appearing that an answer had been previously served by putting it in the post-office," nor would it seem that any specified limit. will be imposed by the court on the period during which a plaintiff's remedy may thus be suspended; though probably, in an extreme case, relief might be extended. The authority of the last decision is confirnied by that in Lawler v. The Saratoga Mutual Insurance Co., 2 C. R. 114.

A notice of appeal may be served, by depositing it in the post-office, on the last day allowed, so far as regards the opposite party. Such service on the clerk of the court will not, however, be in time, but will, on the contrary, be irregular. The provisions in relation to service by mail do not apply to the latter, by whom the notice must be actually received, within the time allowed by sec. 332.-Crittenden v. Adams, 3 C. R. 145; 5 How. 310; 1 C. R. (N. S.) 21. Relief was, however, granted to the party, under sec. 173.