mons served by him was in that cause; and where a sheriff's certificate stated that he served on the defendant a copy of a summons and complaint, but it did not appear that it was the summons and complaint in the action then before the court, it was held not sufficient proof of service (Litchfield v. Burwell, 5 How. 341). The certificate of a sheriff of a county in another State is of no greater effect in this State than the certificate of a private individual. He should make affidavit of the service as any other individual would be required to do (Thurston v. King, 1 Abb. 126; Morrell v. Kimball, 4 id. 352). Where a sheriff serves the summons out of his own county, the proof of service must be by affidavit (Farmer's Loan Co. v. Dickson, 9 Abb. 61; 17 How. 477). A certificate signed " J. C. Butler, under-sheriff," was held to be no proof of service. The return of a deputy-sheriff in his own name is a nullity; the return should be in the name of the sheriff (Joyce v. Joyce, 5 Cal. R. 449). A sheriff's certificate of the service of a summons does not lose its force by lapse of time, or by being previously used for any other purpose; and although it may have been used in reference to a judgment which is afterwards vacated, it continues to be proof of the service, and may be used on a subsequent application for judgment (Brien v. Casey, 2 Abb. 416).

a. Where the proof of service is defective, it may be supplied and filed nunc pro tunc (Farmer's Loan Co. v. Dickson, supra).

6. Disputing the Service.-The return of a sheriff, or an affidavit of a person acting in his place, or the affidavit of any other person, of the service of a summons, is not conclusive upon the defendant; he may disprove such alleged service, on motion to set the proceedings aside (Van Rensselaer v. Chadwick, 7 How. 297; Litchfield v. Burwell, 5 id. 341; Wallis v. Lott, 15 id. 567, and see Bulkley v. Bulkley, 6 Abb. 307; Moulton v. de ma Carty, 6 Rob. 470). Where, on a motion to set aside a judgment taken for want of an answer on the ground of a defect in the service of the summons, it appears that the defendant had improperly endeavored to avoid service of the summons, the judgment will not be set aside unless on satisfactory evidence that the summons had not come to the defendant's knowledge (Southcell v. Marryatt, 1 Abb. 218). Nor will the court set aside a judgment for non-service of the summons, when it appears that although the defendant knew service had been erroneously made on his foreman for him, and that the plaintiff was proceeding on such service as a regular service, yet did not make his motion to set aside until supplementary proceedings were resorted to (Hilton v. Thurston, ib. 318). The objection that a summons was not properly served is not available in an answer or demurrer; the remedy is by motion to set aside the service and proceedings thereon as irregular (Norris v. Hope Mut. Ins. Comp. 8 Barb. 541). Proof of service on conflicting affidavits (see Hunter v. Lester, 10 Abb. 266).

c. Publication, how proved.-In case of publication the affidavit is to be made by the printer, his foreman or principal clerk; but it seems if the affidavit is made by the publisher of the paper it is sufficient (Bunce v. Reed, 16 Barb. 350).

d. Defendant's admission.—Where the proof of service is an admission by the defendant, the admission must be verified and identified, so as to satisfy the court that the admission is indeed signed by the defendant, or with his assent (2 Hill, 369; Litchfield v. Burwell, 5 How. 342; Re Gibson, 5 English's [Ark.] R. 572; Welch v. Walker, 4 Porter, 120; Norwood v. Riddle, 9 id. 426). An admission of service of the summons and complaint, not stating the mode in which the service was made, is not sufficient. The admission must state that the service was personal, by the delivery of a copy thereof to him (Read v. French, 28 N. Y. 285).

e. Fees for serving summons.-For serving a summons the sheriff is entitled to fifty cents for each defendant served. He is also entitled to six cents per mile for going only, to be computed from the court-house. But this fee only applies to the process itself, and not to the number of defendants named, or who may be served. But one travel fee can be charged on the

same process. For the certificate required by section 138, no compensation is provided by that name, *** but it may be regarded as a substitute for a return, and the officer entitled to the fee allowed for such service (12 1-2 cents) (Benedict v. Warriner, 14 How. 570).

a. No fee for serving the summons and complaint is taxable, unless the service be made by the sheriff; and then it is taxable as a sheriff's fee (Whipple v. Williams, 4 How. 30). But where the service is by any person other than the sheriff, then nothing more can be allowed than a reasonable compensation for the labor in making the service; there can be no allowance for constructive traveling, and the affidavit should show the reasonableness of the charge. Thus, where $65 were charged for the service of the summons on forty-two defendants, by a person not the sheriff, the charge being in amount equal to what would have been the legal fees of the sheriff for such services -the affidavit in respect to this item stated the expenses for services on said defendants were necessarily incurred, according to the registry kept by deponent, and according to his best knowledge and belief,—the charge was disallowed (Case v. Price, 17 How. 348).

See note to section 134, and Rule 18.

§ 139. (Am'd 1851.) Jurisdiction. Appearance.

From the time of the service of the summons in a civil action, or the allowance of a provisional remedy, the court is deemed to have acquired jurisdiction, and to have control of all the subsequent proceedings. A voluntary appearance of a defendant is equivalent to personal service of the summons upon him.

6. Effect of appearance.—A defendant may appear at any time before judgment is actually entered (Abbott v. Smith, 8 How. 463; Baxter v. Arnold, 9 How. 447). A voluntary and general appearance, besides being equivalent to a personal service of the summons, is a waiver of all defects in the summons or previous proceedings (see Webb v. Mott, 6 How. 440; Dix v. Palmer, 5 ib. 233; Dole v. Manley, 11 ib. 138; and notes to sections 128 and 129; Hyde v. Patterson, 1 Abb. 248; Bierce v. Smith, 2 id. 411). It does not authorize a judgment for want of an answer without proof of due service (Macomber v. The Mayor, 17 Abb. 36). Where the defects in the summons or proceedings, prior to appearance, are not made apparent until after the notice of appearance is served, then the appearance is no waiver (Voorhies v. Schofield, How. 51; Shafer v. Humphrey, 15 id. 564). An appearance by putting in an answer protesting against the jurisdiction is not such an appearance as waives the objection to the jurisdiction (Sullivan v. Frazee, 4 Rob. 616; Mahaney v. Penman, 1 Abb. 34; 4 Duer, 603; Hewitt v. Howell, 8 How. 347). c. Voluntary appearance. It is never the case in any court that a party uninvited or unwelcome could intrude himself upon the court and the plaintiff, unless he had some right to protect which rendered such appearance necessary; and where one of several persons named as defendants in the summons, but on whom no copy had been served, gave a notice of appearance and demanded a copy of the complaint, and no copy of complaint being served, moved to dismiss the action, it was held he had no right to appear, or move for a dismissal of the action (Tracy v. Reynolds, 7 How. 327); but the superior court has held that a person named as defendant and against whom a judgment is prayed, but on whom no summons has been served, has a right to appear and answer (Higgins v. Rockwell, 2 Duer, 650). See note to § 136, ante p. 140 c.

§ 140. (Am'd 1849, 1852.) Forms of pleading.

All the forms of pleading heretofore existing are abolished; and, hereafter, the forms of pleading in civil actions in courts of record, and the rules by which the sufficiency of the pleadings is to be determined, are those prescribed by this act.

a. How far rules dehors the code apply.-All forms and rules of pleading are abolished, and the rules for testing the sufficiency of a pleading are those prescribed by the code (Royce v. Brown, 3 How. 390; Quintard v. Newton, 5 Rob. 72). But the prior practice and forms of pleading are abolished only in a qualified manner (§ 471, post). There is no inconsistency or repugnancy in applying the provisions referred to from the revised statutes* under the code. It, therefore, remains in force (B'k of Genesee v. Patchin B'k, 13 N. Y. 314; Stone v. West. Trans. Co. 30 N. Y. 240; The Park B'k v. Tilton, 15 Abb. 384). So do the provisions of 2 R. S. 482, § 10, relative to the form of declaring for statute penalties (The People v. Bennett, 5 Abb. 384). That pleadings in actions against corporations are unaffected by the code (see B'k of Waterville v. Beltzer, 13 How. 272; Johnson v. Kemp, 11 id. 186; Union Mut. Ins. Co. v. Osgood, 1 Duer, 707).

b. Election of cause of action.-The code has not changed the common law rule that one may waive the tort and sue on the contract (Hinds v. Tweddle, 7 How. 278; and see 3 id. 378; 12 id. 531; 4 Barb. 36; 16 Barb. 633). And where vendees have been guilty of a fraud upon a purchase of goods on credit, the vendor may, without waiting until the period of credit has expired, reclaim the goods, or he may waive the tort and recover the value

* c. 2 R. S. 458, § 3.-In suits brought by or against a corporation, created by any statute of this State, it shall not be necessary to prove, on the trial, the existence of such corporation, unless the defendant shall have pleaded that the plaintiff is not a corporation (Laws 1864, ch. 422).

(Kayser v. Sichel, 34 Barb. 84; Wigand v. Sichel, 3 Keyes, 120; and see Roth v. Palmer, 27 Barb. 652; and 10 Abb. 206; 37 Barb. 270); and so of goods tortiously taken (Henry v. Marvin, 3 E. D. Smith, 71). Whether or not the tort is waived must be determined by the facts stated in the complaint (Chambers v. Lewis, 2 Hilton, 591; 10 Abb. 206; and see Edick v. Crim, 10 Barb. 445).

a. A mortgage creditor can, in the lifetime of the mortgagor, either sue upon the bond, or foreclose the mortgage; and he has the right, after the death of the mortgagor, at his option either to sue the heirs of the mortgagor upon the bond, or to foreclose the mortgage (Roosevelt v. Carpenter, 28 Barb. 428); so, too, an executor can maintain an action, either in his own name or as executor, upon a note given to him as executor for a debt due the testator at the time of his decease (Merritt v. Seaman, 6 N.Y. 168; and see Eagle v. Fox, 28 Barb. 473).

b. There is no authority for extending the right of election of actions so far as to try, under the form of an action for money had and received, a right or claim to real estate or to its possession, or to the rents and profits (Carpenter v. Stillwell, 3 Abb. 460; and see 15 East, 313; 2 C. & M. 495). Although the forms of action are all merged in one, yet form of action must not be confounded with cause of action. The same state of facts may, by being differently stated, constitute different causes of action; and a skillful adaptation of the facts, so as to constitute this or that cause of action, will sometimes determine the plaintiff's right to recover (see Van Leuven v. Lyke, 1 N. Y. 515; Fish v. Ferris, 5 Duer, 49; Eckstein v. Frank, 1 Daly, 334; and see 31 How. 431).

* * * *

c. It is said that a plaintiff cannot by varying his remedy [form of action] change the legal rights of the defendant. Where the substantial ground of action rests on promises, the plaintiff cannot, by changing the form of action, make one liable who would not have been liable on the promise (Campbell v. Perkins, 8 N. Y. 440, 441). And again, "It is a well-settled rule that a matter arising ex contractu, though infected with fraud, cannot be changed into a tort, in order to charge the infant [the defendant] by a change in the remedy" (The People v. Kendall, 25 Wend. 399; and see Munger v. Huss, 28 Barb. 79). The vendor, on repudiating a contract of sale, for fraud of the purchaser, may sue either in contract or in tort (Roth v. Palmer, 27 Barb. 652); and in his complaint, instead of setting out all the facts, he may claim for goods sold and delivered, leaving the facts of the transaction to be introduced at the trial (3 Keyes, 120); where defendant had sold goods as plaintiff's agent, had misapplied the proceeds and refused to account,-held that plaintiffs might elect either to sue on the contract for refusing to account, or for the breach of duty, and conversion of the money and goods (Ridder v. Whitlock, 12 How. 208; and see Chambers v. Lewis, 10 Abb. 206). But under the code there can be no embarrassment as to the form of action, and whether the action be brought upon the agreement express or implied, or in tort for the violation of the duty arising from the relation of the parties, is immaterial (Trull v. Granger, 8 N. Y. 119; and see Scott v. Pilkington, 15 Abb. 280). This dictum must be received with caution. In Walter v. Bennett, 16 N. Y. 250), plaintiff complained as for a tort; on the trial he proved a cause of action on contract. It was held a case of failure of proof, and he was nonsuited. And the court said, The form of the plaintiff's action is ex delicto; and before he can recover, he must show that defendant committed a wrong (but see Gordon v. Hostetter, 37 N. Y. 104). The same rule applies to a counter-claim (Mayor of N. Y. v. Parker Vein Steamship Co. 12 Abb. 300; 21 How. 289; Piser v. Stearns, 1 Hilton, 89). And it has been held that where plaintiffs had commenced their action as on contract, purposely in order not only to obtain an attachment against the defendant as a non-resident, but also to procure an order for publication against him, and after having by those means procured the defendant's appearance, they should not be allowed to amend the summons and complaint, to make the action in tort for converting plaint

iff's goods (Lane v. Beam, 19 Barb. 51). There is still a distinction between tort and assumpsit, and on a complaint for converting a promissory note, the plaintiff cannot recover for money received to his use (Andrews v. Bond, 16 Barb. 633; and see note to § 171; and see Munger v. Huss, 28 Barb. 79). In Hess v. Buffalo & Niagara Falls R. R. Co. 29 Barb. 391, the complaint stated facts capable of being used as the basis of either one of two causes of action, and the court said that the defendant might require that the plaintiff be put to his election for which cause of action he would prosecute (see, however, Scott v. Pilkington, 15 Abb. 280; and see note to § 275).

a. Where money has been collected on a judgment which is subsequently reversed, the party aggrieved may resort either to his remedy by an order of restitution, a scire facias, or an action (Lott v. Sweezey, 29 Barb. 87). And where the complaint claimed specific relief purely equitable, and made no demand for debt or damages, and the proof showed the relation of debtor and creditor between the parties, and that the real cause of action was a money demand only, the court refused to allow the plaintiff an order to have the issues tried by a jury, and dismissed the complaint (Craig v. Hyde, 24 How. 313).

b Generally whenever a man may have an action on a sealed instrument, he is bound to resort to it (Young v. Preston, 4 Cranch, 239; Marine Ins. Co. of Alexandria v. Young, 1 id. 322). And at common law there was only one case in which, where there was a contract under seal, the plaintiff could declare generally, and on the trial give his deed in evidence in support of his claim. That case was where there was a sealed lease, under which the lessee had taken and held possession. There the lessor might elect either to sue in covenant on this lease (i. e. make the covenant the cause of action), or else to sue in debt for the rent (i. e. make the use and occupation the cause of action). See the reason for this (Gould's Pl. ch. 6, part 1, §§ 11, 13); and now a plaintiff, the lessor in a lease under seal, may, without referring to the lease in his complaint, state a cause of action for use and occupation, and, on a denial, may upon the trial give the lease in evidence in support of his right of action, and to show the relation of landlord and tenant, and the value of the use and occupation (Ten Eyck v. Houghtaling, 12 How. 523). It was, however, a well-settled rule, that where there was a special agreement and the plaintiff had performed on his part, the law raised a duty on the part of the defendant to pay the price agreed upon; and the plaintiff might count either on this implied assumpsit, or on the express agreement (Lawes Pl. 5; Jewell v. Schroepell, 4 Cow. 564; Feeter v. Heath, 11 Wend. 484; Mead v. Degolyer, 16 id. 637; Clark v. Fairchild, 22 id. 576; Hurst v. Litchfield, 39 N. Y. 377; 7 Trans. Ap. 179). This rule is not changed by the code, and the plaintiff may still, in such circumstances, rely on the implied assumpsit (Farren v. Sherwood, 17 N. Y. 227; Hosley v. Black, 26 How. 97; 28 N. Y. 488). But to sustain a general count in assumpsit on a special agreement, the special agreement must have been so performed as to leave a mere simple debt or duty between the parties (Evans v. Harris, 19 Barb. 416; see Atkinson v. Collins, 30 Barb. 430; 9 Abb. 353). Another instance where the plaintiff has an election of remedy is, where the cause of action originally accrued at a time beyond the term of limitation prescribed by law for bringing such an action, and the plaintiff intends to insist on his right to maintain the action by reason of a new or continuing acknowledgment or promise." There he may sue on the new promise, or "found his complaint on the original cause of action;" and if, in that case, an answer of the statute of limitations be interposed, the plaintiff in avoidance of it may rely on the new or continuing promise (Esselstyn v. Weeks, 12 N. Y. 635). The reason for this is that the statute of limitations only bars the remedy, and does not extinguish the cause of action. But where a cause of action has been extinguished by release or otherwise, and there is a subsequent valid promise to satisfy such cause of action, such promise is not a revival of the original cause of action, but creates an entirely new cause of action; and such subsequent promise, and not the original cause of action,

66