Cornell v. Watson — 1 Edw. Ch. 82

Majority

p. 82

Cornell vs. Watson and others.

Headnote

A non-resident defendant is entitled to the whole of the time which is fixed by the statute wherein to appear; notwithstanding a copy of the order for' his appearance be personally served upon him pursuant to tile 124th section.. 2 R. S. 186. This service only saves advertising.

August 3, 1831.

One of the defendants in this suit was a member of a firm in the city of New York, but resided at Boston in the State of Massachusetts.

The usual application for publication and appearance within four months was made, under the provisions of 2 R. S. 186. sec. 122, 123,124. The only question was, whether this nonresident defendant would have the remainder of the four months wherein to appear, in case the complainant personally served him with a copy of the order “ at least twenty days before the “ time prescribed for the appearance of such defendant.”

There may seem, at first sight, to be some incongruity in the statute; but I am satisfied the only benefit intended by the service of the order relates to publication. Such service would save the trouble and expense of advertising. This defendant is entitled to the four months to appear after the date of the order. The bill cannot be taken pro confessa against him before the end of that time, although the order should be personally served upon him.