Ross a. Dinsmore. made the basis of some action by him in the progress of the cause. The power of amendment of a pleading after the adverse party has answered it, is a valuable right, and should not be cut off by mere implication. It is designed to further justice, by enabling a party to frame his case in the best possible way, which the truth will allow, to meet the objections and defences of his antagonist. In short, to adapt the pleadings to the true and real issue between the parties. I am of opinion, therefore, that when the defendants served their answer to the plaintiff's complaint, the plaintiff had not foreclosed his right to amend of course, and was regular in subsequently serving an amended complaint. This being so, the defendants' motion to set aside as irregular, and with costs, must be denied, and with $10 costs. II. January, 1861.-At this term the motion was renewed and reargued before Mr. Justice Sutherland, and again denied, the following opinion being rendered : SUTHERLAND, J.-This motion must be denied with $10 costs. I make this decision entirely irrespective of the question, whether the clause in the order of Justice Leonard, giving the plaintiff leave to amend, was or was not inserted in those orders at the instance of the plaintiff. Assuming that the clause was so inserted, at the instance of the plaintiff, or with his knowledge and consent, I think the leave so to amend should be considered as leave to amend in the then stage of the action, before answer, and ought not to impair or affect the statutory right to amend at any time, within twenty days after service of the answer. Fiske a. Anderson. FISKE a. ANDERSON. Supreme Court, First District; General Term, November, 1860. JURISDICTION.-JUDGMENT ON SERVICE BY PUBLICATION. The Code gives the court no jurisdiction to order service of summons on a nonresident defendant by publication, unless the defendant has property within the State at the time when the order is made. The existence of such property, or, it seems, any of the grounds of ordering service by publication, are jurisdictional facts, and the determination of the court or judge that such facts exist, made upon the ex-parte application for the order, is not conclusive. In an action on a judgment which was recovered in this State upon service of process on the defendant, by publication and by personal service without the State, it is competent on him to show that he had no property within this State at the time the order for service by publication was made. Where publication and mailing is ordered, personal service out of the State is only equivalent to mailing, and can have no greater effect. Whether a judgment obtained on service by publication is effectual further than as against the defendant's property within the State,-Query? Appeal from a judgment. This complaint stated, that in March, 1860, James McBride and others recovered judgment in this court against the defendants for the sum of $947.89, which judgment was duly assigned to the plaintiff and remained unpaid; and demanded judgment for the sum, with interest and costs. The defendant answered that the action in which the supposed judgment against him was alleged to have been recovered, arose upon contract; that when that action was commenced, defendant was a non-resident of New York and a resident of Illinois; that he never appeared in that action, and never was personally served in New York with summons therein; that when the order for publication of the summons in that action was made, and for a long time before and after, defendant had no property or rights of property within the State of New York; that when that judgment was rendered, this court had acquired no jurisdiction of his person; that the judgment was taken against him as by default for want of an answer; that at the Fiske a. Anderson. time when that action was pretended to be commenced against him he was not indebted to the plaintiffs therein, and stated facts in support of that allegation. The cause was tried by the court without a jury, when plaintiff gave in evidence the record of the judgment mentioned in the complaint, comprising, 1. A summons for a money-demand on contract, dated January 25th, 1850. 2. A complaint on a promissory note, stated to have been made by defendants to the plaintiffs, and past due, and for goods sold and delivered. 3. An affidavit of the service of said summons and complaint on Harvey B. Anderson, this defendant in person, at Coval, in the State of Illinois, on 21st February, 1850. 4. An order entitled in that action, for service of summons by publication, made by a justice of this court, and dated 25th January, 1850. The recitals of this order were as follows: "It appearing to my satisfaction, by the affidavit of Edmund Terry, that a cause of action on contract exists against the above-named defendants, and that such defendants cannot, after due diligence, be found in this State, and that they have property in this State, and that all such defendants reside in Coval, McHenry county, State of Illinois." And the order thereupon directed that the summons in the action be served by publication for six weeks in two newspapers printed in New York, and that a copy of the summons and complaint be forthwith deposited in the postoffice, directed to said defendants at Coval, McHenry county, Illinois. 5. An order made by a justice of this court on 29th March, 1850, whereby, after reciting that it appeared that service of the summons in this action by publication was ordered, and personal service of a copy of the summons and complaint had been made, according to law, out of the State, and no answer put in by the defendants, &c., it was referred to take proof of the demands mentioned in the complaint, and examine plaintiffs as to payments, and, if the amount claimed by plaintiffs was due, then that they have judgment. 6. The report of the referee, stating that he had examined one of the plaintiffs, and taken proof of their demands, and found the amount claimed by them to be due. Fiske a. Anderson. 7. An adjustment of the plaintiffs' costs by the clerk, including an allowance of five per cent. 8. Judgment, dated 30th March, 1850, against said defendants for $947.89. The plaintiff then rested, and defendant moved to dismiss the complaint. The court denied the motion, and thereupon ruled and decided. 1. That the service of the summons and complaint on the defendant Anderson at Coval, in Illinois, was good and sufficient service, and gave the court jurisdiction of the person of that defendant. 2. That the recital in the order of publication, that it appeared that the defendants had property in this State, was conclusive evidence that the defendant had property here at that time; and 3. That the judgment was a good and valid judgment against the persons and property of the defendants so served out of the State, and was conclusive evidence of debt in this action. To each of these rulings and decisions the defendant excepted. The defendant offered to prove, 1. That the defendants, in the action in which said judgment. was recovered, had not, nor had either of them, when that action was commenced, or when the order of publication therein was made, or when that judgment was rendered, any property within this State. 2. That before the commencement of that action the defendants therein had paid the demands for which it was brought, and for which the judgment was rendered, and were not then, nor at the time of the trial in this action, indebted to the plaintiffs in that action, or to the plaintiff in this action, in any sum whatever. The evidence so offered was objected to by the plaintiff, and rejected by the court, to which decision defendant duly excepted. Judgment was then rendered against the defendant for $1528.90, and from that judgment he now appealed. Orlando L. Stewart, for appellant.-I. The judgment-record is no evidence of debt in this action. 1. It appears by it that the defendant was never personally served with the sum Fiske a. Anderson. mons in that action within this State, and had no sufficient notice of the pendency of the same. The court, therefore, never acquired jurisdiction of his person, and could render no judgment against him, in personam. 2. It does not appear by that record that the defendants therein had any property within the jurisdiction of the court when the action purports to have been commenced, nor when the order of publication was granted, nor at any other time. There is no affidavit or return of the sheriff showing that property had been attached, or that the defendants even had property within the State. The recital in the order of publication is no evidence that such was the fact. The evidence itself should be contained in the record, for without it the court could have no jurisdiction. 3. Even if the defendants had property in this State at the time, and it had been attached, the court acquired jurisdiction only as to that property, and when that was appropriated, its jurisdiction ended, and the court could not render a judgment which would be evidence of debt in this action. Attachments against the property of non-residents, where there is no personal service, are in the nature of proceedings in rem, and when the property is exhausted, the jurisdiction of the court is at an end. (Story on Confl. of L., 461, § 549; 1 Kent's Com., 280, note c; Starbuck a. Murray, 5 Wend., 148; Holbrook a. Murray, Ib., 161; Bradshaw a. Heath, Ib., 407-416; Oakley a. Aspinwall, 4 Comst., 513, 521, 522.) II. The recital in the order of publication is not conclusive evidence that the defendants had property in the State at the time it was granted or at any other time; and the court below erred in excluding the offer of evidence, showing that they had none. If the defendants had no property, then the court had no jurisdiction, and it is always competent for the defendant to prove facts showing the want of jurisdiction in the court. (Shumway a. Stillman, 6 Wend., 447.) III. The defendant had a right to make any defence which he might have had to the original action; and the court erred in excluding the offer to prove that before that action was commenced defendants had fully paid the demand. (Carman a. Townsend, 6 Wend., 206; Brum a. Bokee, 4 Den., 56.) Section 135 of the Code does not make it obligatory on a non-resident defendant to come into our courts to defend an action when no personal service is made within the State; nor does it confer juris |