the summons and complaint are not taxable unless served by the sheriff'; and then they are taxable as sheriff's fees. Whipple v. Williams, 4 How. 28. But see 8 id. 385, 386. No private person can claim sheriff's fees, and if the services which sheriffs may perform are performed by private persons, nothing more can properly be charged or allowed in the bill of costs than a reasonable compensation for the services rendered. Nothing can be allowed for constructive traveling or other services, in such cases. Case v. Price, 17 How. 348; S. C. 9 Abb. 111. See 19 How. 570; 11 Abb. 152. As to facts in affidavit of service, see Sup. Ct. Rules, 23. n. Demanding fees in advance.—A sheriff may, under the statute, demand his fees for service of a summons and complaint, previous to the service thereof; but if he serves them without pre-payment, he cannot retain them, and refuse to make a return, because his fees are not paid. Wait v. Schoonmaker, 15 How. 460. 0. Affidavit of service. -If the defendant denies the service of the summons upon him, and there is any doubt as to the truth of such denial, a positive affidavit of service, upon file, will prevail. A defect in the affidavit, in respect to the name of the defendant, is a mere irregularity which will be waiv ed if not taken advantage of promptly. Moulton v. De Ma Carty, 6 Rob. 470. § 139. (Am'd 1851.) When jurisdiction of action acquired. 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. a. Service of summons.-The service of a summons by publication is not effected until the expiration of the time of publication. Moore v. Thayer, 6 How. 47; S. C. 10 Barb. 258; 3 Code R. 176. The mere issuing of a summons is not the commencement of an action for general purposes. Until it is served so as to give the court jurisdiction of the person of the defendant, no attachment against the property of a non-resident can be issued. Kerr v. Mount, 28 N. Y. (1 Tiff.), 659. But see Corson v. Ball, 47 Barb. 452, in which it is held, that an attachment may be allowed, issued, and served, before the service of the summons is fully completed. b. Provisional remedy.- Where an attachment has been issued, and no summons served, the court, by § 139, has jurisdiction and control of the proceedings for the purpose of reviving and continuing the action in the name of the representative of a deceased party. Moore v. Thayer, 6 How. 47; S. C. 10 Barb. 258; S. C. 3 Code R. 176; Burkhardt v. Sanford, 7 How. 329; Matter of Griswold, 13 Barb. 412. Where two partners commenced suits, each against the other, to close up the partnership, and to enjoin his partner from interfering with the partnership effects, one in the superior court, by procuring a temporary injunction on the 14th of September, which, with the summons, was served on the 15th of September, about 3 P. M., and the other commenced in the supreme court, by obtaining an ex parte order for a receiver, who took possession of the property on the 15th of September, and afterwards, about 8 o'clock the same day, the summons and injunction were served; held, that the action commenced in the superior | court, by the allowance of an injunction, on the 14th of September, conferred on that court jurisdiction, and gave it priority. The appointment of a receiver was of no more weight than the allowance of the injunction; both were provisional remedies, and either would give jurisdiction. McCarthy v. Peake, 18 How. 138; S. C. 9 Abb. 164. In an action of claim and delivery of personal property, the approval of the undertaking by the sheriff (process not having been served), is not the allowance of a provisional remedy, so as to give the court jurisdiction of the action under § 139 of the Code. Nosser v. Corwin, 36 How. 540. c. Voluntary appearance.-The voluntary appearance of a defendant by attorney in an action, is equivalent (for the purposes of jurisdiction) to personal service of the summons on him, unless he expressly limits the appearance of his attorney to the purpose of setting aside proceedings. Freeman v. Young, 3 Rob. 666. A voluntary and general appearance in an action not only gives jurisdiction, but cures defects in previous process. Dix v. Palmer, 5 How. 233; S. C. 3 Code R. 214; Webb v. Mott, 6 How. 440; Baxter v. Arnold, 9 id. 445; Dole v. Manley, 11 id. 138; Hyde v. Patterson, 1 Abb. 248; Bierce v. Smith, 2 id. 411; Macomber v. Mayor, etc., of New York, 17 id. 36. But such an appearance will not justify a judgment on failure to answer, without proof of the actual service of the summons. Macomber v. Mayor, etc., of New York, 17 Abb. 36. A general appearance, however, by the defendant in an action, before the service of the complaint, is not a waiver of the objection that the complaint does not conform to the sum mons. Voorhees v. Scofield, 7 How. 51; Shafer v. Humphrey, 15 id. 564. It is otherwise where the summons and complaint are served together. Hewitt v. Howell, 8 How. 346. An appearance by answer, which protests against the exercise of jurisdiction, is not such an appearance as waives the objection to the jurisdiction of the court. Sullivan v. Frazer, 4 Rob. 616. The mere subscription of an answer with the name of an attorney, is not such an appearance as waives any objection to jurisdiction. Id. See also Mahaney v. Penman, 1 Abb. 34; S. C. 4 Duer, 603, in which it was held, in the Superior Court, where one of several defendants, jointly liable, in a judgment (upon which action was brought), appeared by answer, and protested to the jurisdiction of the court, on the ground| that it did not appear, on the face of the proceedings, either that he resided, or was personally served with process, within the city of New York, that such appearance was equivalent to personal service. d. When permitted.-One of several defendants, who has not been served with a summons or complaint, cannot voluntarily appear, and move to dismiss the complaint | | under § 274, where his rights are not affected. He must be contented to remain quiet out of court, until invited to appear there. Tracy v. Reynolds, 7 How. 327. A person named as a defendant, against whom, personally, a judgment is prayed, has a right to appear and answer, before he has been served with a summons, under § 139 of the Code. Higgins v. Freeman, 2 Duer, 650. Where two defendants, as partners, are to be made jointly liable, in an action on contract, and the summons and complaint is served on only one of them, the other may voluntarily appear, under § 139 of the Code, and put in answer; and the plaintiff is bound to receive it, although the defense interposed is infancy. Wellington v. Claason, 18 How. 10; S. C. 9 Abb. 175. As to voluntary appearance in a suit against partners, in a case of misnomer, see Waterbury Leather Manufacturing Co. v. Krause, 9 Abb. 175, (n.); S. C. 1 Hilt. 560. A defendant may appear after default and before judgment, in all cases where an assessment of damages is necessary. Abbott v. Smith, 8 How. 463; Baxter v. Arnold, 9 id. 445. See 2 Daly, 53, and 11 How. 481, 483. § 140. [118.] (Am'd 1849, 1852.) Forms of pleading inconsistent with this act abolished. 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 other rules apply.-All former rules and forms of pleading are swept away, and the only rules to establish the form and sufficiency of a pleading are those estab | lished by the Code. Quintard v. Newton, 5 Rob. 72; Royce v. Brown, 3 How. 391; S. C. Aff'd, 7 Barb. 80. Nevertheless, the Code does not interfere with or abolish existing statutory provisions, not inconsistent with the enactment of the Code, and applicable to actions arising thereunder. See sec. 471; (for example, 2 R. S. 458, § 3). In this there is nothing inconsistent with the provisions of the Code; and the same reasons of convenience for it exist now as under the former system; it therefore remains in force. Bank of Genesee v. Patchin Bank, 13 N. Y. (3 Kern.), 309; Park Bank v. Tilton, 15 Abb. 384. See, also, 2 R. S. 482, § 10, relating to form of complaint | for statute penalties. People v. Bennett, 5 Abb 384; S. C. Aff'd, 6 id. 343, overruling Morethe Code affect pleadings in actions against corhouse v. Crilley, 8 How. 431. Neither does porations. Bank of Waterville v. Beltser, 13 How. 270; Johnson v. Kemp, 11 How. 186; Union Mutual Insurance Co. v. Osgood, 1 Duer, 707; S. C. 12 N. Y. Leg. Obs. 85. In regard to pleadings in real actions, see §§ 448 455, post, and notes. I. CHOICE OF a. Tort or contract.-The common law rule "that one may waive the tort and sue on the contract," still prevails. Wigand v. Sichel, 3 Keyes, 120; Hawk v. Thorn, 54 Barb. 164; Chambers v. Lewis, 10 Abb. 206; S. C. 2 Hilt. 591; Aff'd, 11 Abb. 210; Hinds v. Tweddle, 7 How. 278. But see McKnight v. Dunlop, 4 Barb. 36, and Henry v. Marvin, 3 E. D. Smith, 71. But where the action is commenced and tried as an action sounding in tort, it is too late after an appeal for the plaintiff to amend his complaint and make his allegations such as to imply a contract. Andrews v. Bond, 16 Barb. 633. If the allegations of facts are properly stated, the prayer for relief may be amended on the trial. Dows v. Green, 3 How. 377. If the action is brought upon the contract, the allegations of fraud may be stricken out. Sellar v. Sage, 12 How. 531. But the tortious acts may be proved. Harpending v. Shoemaker, 37 Barb. 270. Where the goods were obtained on credit through fraudulent representations, the de fendants are liable for immediate payment, as if no express contract had been made. Kayser v. Sichel, 34 Barb. 84; S. C. Aff'd, 33 How. 174, sub nom. Wigand v. Sichel; 3 Keyes, 120; Roth v. Palmer, 27 Barb. 652. See Eckstein v. Frank, 1 Daly, 334. The allegations of the complaint determine whether the action is brought on the contract or in tort. Chambers v. Lewis, 10 Abb. 206; S. C. 2 Hilt. 591; S. C. Aff'd, 11 Abb. 210; Edick v. Crim, 10 Barb. 445. b. Mortgage.-The mortgagee may bring his action on the bond without attempting to foreclose the mortgage. Roosevelt v. Carpenter, 28 Barb. 426. c. Executor.-An executor may bring a suit in his own name upon a note given to him as executor for a claim due the testator. Merritt v. Seaman, 6 N. Y. (2 Seld.), 168; Rev'g S. C. 6 Barb. 330; Eagle v. Fox, 28 Barb. 473; S. C. 8 Abb. 40. d. Distinction between form, and cause of action.-Forms of action must not be confounded with causes of action, for although the former have been changed, the latter remain as distinct as before the Code; nor is the right of election of actions extended; so that a claim to real estate, and its rents and profits, cannot be tried under an action for money had and received. Carpenter v. Stilwell, 3 Abb. 459. REMEDIES. And where an action is brought for the damages done by the domestic animals of the defendant, and it is claimed that such animals ed, but it must be alleged and proved that, were vicious, that fact must not only be allegthat fact was known to the defendant. Van Leuven v. Lyke, 1 N. Y. (1 Comst.), 515. preferred, having reference to the remedy or e. Infant.-One cause of action may be defense: as where an infant hired a horse to further, the plea of infancy is no defence to an go a fixed distance, and wrongfully went much action for the tort. Fish v. Ferris, 5 Duer, 49. See also, Campbell v. Stakes, 2 Wend. 137; Eckstein v. Frank, 1 Daly, 334. f. Changing remedy.-Where the cause of action is tort, the tort should be clear and distinct, for "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 change the remedy." Campbell v. Perkins, 8 N. Y. (4 Seld.), 430, (440.) But see Wallace v. Morss, 5 Hill, 39, and Munger Wend. 399. See subd. k, infra. v. Hess, 28 Barb. 75; People v. Kendall, 25 9. Allegations of fraud.-Where the contract of sale, or, for the possession of property, has been repudiated on account of the fraud of the defendant, it is not necessary to allege all of the facts in regard to the tranmaintain the cause of action, and if the saction, but only such as are necessary to special agreement is set up by way of defence, the facts of the transaction may be proved on the trial. Roth v. Palmer, 27 Barb. 652. See also, Ridder v. Whitlock, 12 How. 208; and Chambers v. Lewis, 10 Abb. 206; S. C. 2 Hilt. 591; S. C. Aff'd, 11 Abb. 210. under the Code there can be no embarrassh. Rule under the Code.-Although ment, as to the form of the action, Trull v. Granger, 8 N. Y. (4 Seld.), 115; Scott v. Pilkington, 15 Abb. 280; yet it is necessary so to frame the allegations as to show clearly and distinctly under which cause of action the suit is brought, and in such a way that the evidence may establish the particular facts alleged. Walter v. Bennett, 16 N. Y. (2 | Smith), 250; and the same rule holds good as to the answer. Mayor, etc., of New York, v. Parker Vein Steamship Co. 21 How. 289; S. C. 12 Abb. 300; 8 Bosw. 300; Piser v. Stearns, 1 Hilt. 86; Andrews v. Bond, 16 Barb. 633. i. Amendment.-After a suit has been brought under one cause of action for the purpose of obtaining a particular remedy, the court will not allow an amendment of the pleadings so as to change the cause of action that he may obtain a different remedy. Lane v. Bream, 19 Barb. 51. See subd. e, above. j. Distinct causes of action.-When the complaint is so drawn that the plaintiff may ask for judgment under either of the two causes of action set forth in the complaint, the court may compel the plaintiff to elect which of the causes of action he will prosecute. Hess v. Buffalo & Niagara Falls R. R. Co. 29 Barb. 391. But where some of the facts stated are inconsistent with the relief demanded, though insufficient to allow a change in the nature of the action, the court will not compel the plaintiff to name his action; the remedy is by motion to strike out. Hall v. Hall, 38 How. 97. k. Judgment reversed after payment.-Where money has been collected or received upon a judgment valid at the time, and the judgment has been subsequently reversed, it may be recovered in an action, as well as by order of restitution, or by scire facias. Lott v. Swezey, 29 Barb. 87. 1. Equitable relief.-When the complaint claims specific relief, purely equitable, and makes no demand for money or damages, and the facts show a money demand only, the plaintiff will not be allowed to change his remedy, by obtaining an order that the issue be tried by a jury as a money demand. Craig v. Hyde, 24 How. 313. See subd. e, above. m. On sealed instruments.-Where there is a lease under seal, the plaintiff may sue on the covenant, and make the covenant his cause of action; or sue for the debt, and by so doing, make the occupation his cause of action. And in such case the lease may be evidence to show the amount of the debt. Ten Eyck v. Houghtaling, 12 How. 523. The same rule prevails as before the Code. Gould Pl. c. 6, part 1, §§ 11, 13; and yet whenever the action will lie upon the sealed instrument, it was safer to bring the action in that form. II. SEPARATING a. General distinction.-The true distinction between demands or rights of action which are single and entire, and those which are several and distinct is, that the former immediately arise out of one and the same act or contract, and the latter out of different acts or contracts. Where the business of ship carpentry was carried on in one part of a building by two of the partners in a firm, and the business of ship chandlery in another part of the same building under the direction of a third partner, separate books of account were kept in the two branches of business; work was done and materials were furnished from the carpentry branch of the business, and goods sold from | Young v. Preston, 4 Cranch, 239. If there was a special agreement to do the work, and the work was not done according to the agreement, an action on the specific agreement would not lie, although the defendant may have accepted the work. Jewell v. Schroep. pel, 4 Cow. 564; Clark v. Fairchild, 22 Wend. 576; Mead v. Degolyer, 16 id. 632, and cases there cited. It is sufficient to state facts showing the duty from which the law implies the promise. Allen v. Patterson, 7 N. Y. (3 Seld.), 476; Farron v. Sherwood, 17 N. Y. (3 Smith), 227; Hosley v. Black, 26 How. 97; S. C. 28 N. Ý. (1 Tiff.), 438. So, too, where the special agreement is fully completed, he may bring his action in either form. Evans v. Harris, 19 Barb. 416. But if the work is not fully completed, he must bring his action on the specific agreement. Atkinson v. Collins, 30 Barb. 430; S. C. 9 Abb. 353; 18 How. 235. A mortgagor may bring his action on the bond without attempting to foreclose the mortgage. Roosevelt v. Carpenter, 28 Barb. 426. n. New promise.-When the complaint is upon the original demand, and the defendant sets up the statute of limitations, the new promise or acknowledgment may be given in evidence without its being alleged in the pleadings. Esselstyn v. Weeks, 12 N. Y. (2 Kern.), 635; S. C. 2 Abb. 272; Rev'g S. C. debt was released and afterwards revived by 2 E. D. Smith, 116. But where the original a new promise, the action must be on the new promise. Stearns v. Tappin, 5 Duer, 294. counted on as modified. Holmes v. Holmes, 9 Where the agreement is changed, it must be N. Y. (5 Seld.), 525; Aff'g S. C. 12 Barb. 137. o. Injunction bond.-The bond given on obtaining an injunction affords ample remedy for any damages sustained by the defendant, and he must resort to an action upon it for indemnity. Hall v. Fisher, 20 Barb. 441. p. Receiver.-And where a receiver has obtained a judgment, a person at whose instance such receiver was appointed, cannot bring a suit for the same matter. Tinkham v. Borst, 24 How. 246; S. C., before, 15 How 204; Aff'd, 31 Barb. 407. CAUSES OF ACTION. the ship chandlery branch of the business to the same brig. Held, that the two accounts did not furnish an entire claim, and a recovery on one account no bar to an action on the other account. Secor v. Sturgis, 2 Abb. 69; Aff'd, 16 N. Y. (2 Smith), 548. See, also, Phillips v. Berick, 16 Johns. 136. In a suit upon a church subscription to pay so much yearly, all the instalments that are due must be included in the suit. Reformed Protestant Dutch Church of Westfield v. Brown, 54 Barb. 191. b. Rule.-Where the demands are separate and distinct, separate actions may be brought; and if the action is brought on separate transactions, it is not necessary that the complaint contain items of all the transactions. Beekman v. Platner, 15 Barb. 550. c. Betting and gaming.-Where money is lost in gaming on several occasions, separate actions may be brought. Betts v. Hillman, 15 Abb. 184 d. Goods sold. - Where the suit is brought upon a large bill of items, and only a portion of them proved and judgment taken for the amount proved, it will bar an action on the remainder. Phillips v. Berick, 16 Johns. 136; Stevens v. Lockwood, 13 Wend. 644. But he may bring an action for goods sold on several occasions, and afterward bring another action for goods sold at an earlier date; that is, where the second transaction is not a part of, and did not grow out of the first. Staples v. Goodrich, 21 Barb. 317. See Cashman v. Bean, 2 Hilt. 340, and Guernsey v. Carver, 8 Wend. 492. In order that the former action would be a bar to any future action, the right to bring the suit must exist at the time, and there must be an opportunity and a court to enforce the remedy. Matthews v. Duryee, 4 Keyes, 525. An entire and indivisible demand cannot be split up so as to form a basis of two actions. Draper v. Stouvenel, 38 N. Y. (11 Tiff.), 219. See Staples v. Goodrich, (and cases there cited), 21 Barb. 317. So in an action of trespass, in taking goods, separate actions cannot be brought for the several articles. Farrington v. Payne, 15 Johns. 432. So, too, where several articles are sold and delivered at the same time, only one action will lie. Smith v. Jones, id. 229. And also, where the sale is one, but the delivery is in different parcels. Miller v. Covert, 1 Wend. 487; and where he obtains a judgment for a part, he cannot set off the remainder in another action. id. But if he is sued for the price of an article sold, he may set up breach of warranty in that action, or he may bring another suit. Cook v. Mosely, 13 Wend. 277. e. Breach of covenant.-Where a single covenant is broken in more than one particular, an action cannot be brought for each separate breach. Coggins v. Bulwinkle, 1 E. D. Smith, 434; Bendernagle v. Cocks, 19 Wend. 207. See, also, Stuyvesant v. Mayor, etc., of New York, 11 Paige, 414; Aff'g S. C. 1 N. Y. Leg. Obs. 101; Fish v. Folley, 6 Hill, 54. But for every new breach a new action may be brought. Crain v. Beach, 2 Barb. 120; S. C. Aff'd, 2 N. Y. (2 Comst.), 86. On a lease, he may sue for non-payment of rent, and afterwards may sue for the penalty of holding over on a subsequent quarter. Wickham v. Lee, 12 Q. B. 521; S. C. 11 London Law Times; 240. f. Security.-Where the defendant wrote a letter promising to become surety for rent, the letter was shown to the plaintiff, but no lease executed; a suit brought thereon to recover one quarter's rent is a bar to any future recovery, as it was an agreement to become security and not to pay rent, and but one action can be brought for damages thereon. Waterbury v. Graham, 4 Sandf. 215. g. Joint actions.-Joint causes of action cannot be split up into several actions, but if any of the joint owners refuse to join in the action, they must be made defendants. Coster v. New York and Erie R. R. Co. 6 Duer, 44; S. C. 3 Abb. 332; Bowdoin v. Coleman, id. 431; S. C. 6 Duer, 182. But the objection must be taken on or before the trial. Ib. But the defendant may allow separate actions to be brought, either by giving security to pay such claim; Secor v. Sturgis, 16 N. Y. (2 Smith), 548-; Aff'g S. C. 2 Abb. 69; or by confessing a judgment. Cornell v. Cook, 7 Cow. 310; or by settling with one of such joint owners. Gock v. Keneda, 29 Barb. 120; or by insisting on an amendment striking out one of the joint owners. Carrington v. Crocker, 37 N. Y. (10 Tiff.), 336; S. C. 4 Abb. N. S. 335; 4 Trans. App. 230. h. Corporations.-In suits brought by (or against) a corporation, created by or under any statute of this State, it shall not be necessary to prove on the trial of the cause the existence of such corporation, unless the defendants shall have alleged in the answer in the action, that the plaintiffs (or defendants, as the case may be) are not a corporation. Laws of 1864, ch. 422, p. 1006. i. Bill of sale.-A bill of sale of a canal boat will not transfer to the purchaser any title to a cause of action for a fraud in the sale of the boat to any former purchaser. Binnard v. Spring, 42 Barb. 470. j. Counterclaim.-Where the defendant sets up a counterclaim, the plaintiff may insist upon the jury passing upon the merits of such counterclaim, although the complaint is dismissed. Miller v. Freeborn, 4 Rob. 608. k. Waiver.-The rule that single causes of action shall not be divided, is for the interest of the debtor, and he may waive it, as by agreeing that if the creditor would sue upon only a part of his claims, he would pay the whole, in case judgment was recovered upon such part. Mills v. Garrison, 3 Keyes, 40. § 141. [119.] First pleading to be complaint. The first pleading on the part of the plaintiff is the complaint. § 142. [120.] (Am'd 1851.) Complaint; what to contain. The complaint shall contain: 1. The title of the cause, specifying the name of the court in which the |