a. This section of this code (sec. 136) appears to go further than the Revised Statutes, and to provide as well for one of several joint debtors, as for one of several defendants severally liable.

6. Under the provisions of the Revised Statutes it was held, that, in actions against two or more jointly indebted upon any joint obligation or contract, where one or some only of the defendants had been served, the judgment, if for the plaintiff, must be against all the defendants. 5 Hill, 37; 10 Wend., 630; 6 ib., 500. Even if the defendant not served be an infant. 15 Wend., 64; ib., 612. The judgment so obtained was conclusive evidence of the liability of the defendant or defendants served, or who appeared; but as against the defendant or defendants not served, or who did not appear, the judgment was evidence only of the extent of the liability of such defendant or defendants, after their liability had been established by other evidence. An action of debt might be brought on such judgment against such defendant or defendants. And in such action the plaintiff, on the plea of nul tiel record being interposed, had to prove the defendant's liability. 6 Wend., 206, 293, 23; 14 ib., 221.

c. When a suit is brought against several heirs of a person dying intestate (under laws of 1837, p. 537), some being served with process and some not, held that a judgment in form could not be entered against those not served as against joint debtors. (Kellogg v. Olmsted, 6 Pr. R., 487). Nor can they be summoned to show cause why they be not bound by the judgment (under s. 375 of the Code.) Ib. d. As to the execution on a judgment under the above provisions of the Revised Statutes, see notes to sections 289 and 291.

§ 137. [115.] (Amended 1849.) When service complete.

In the cases mentioned in section 135, the service of the summons shall be deemed complete at the expiration of the time prescribed by the order for publication.

§ 138. [116.] (Amended 1851.) Proof of service.

Proof of the service of summons and of the complaint or notice, if any, accompanying the same, must be as follows. 1. If served by the sheriff, his certificate thereof; or, 2. If by any other person, his affidavit thereof; or,

3. In case of publication, the affidavit of the printer, or his foreman, or principal clerk, showing the same, and an affidavit of a deposit of a copy of the summons in the post-office, as required by law, if the same shall have been deposited; or, 4. The written admission of the defendant.

In case of service, otherwise than by publication, the certifi cate, affidavit, or admission, must state the time and place of the service.

e. The amendments in this section are the words in italic. The words " as required by law," being new, and the words "service otherwise than by publication,” being substituted for the words "in case of actual service."

f. By rule 84 it is provided, "that where the service of the summons, and of the complaint or notice, if any, accompanying the same, shall be made by any other person than the sheriff, it shall be necessary for such person to state, in his affidavit of service, when and at what particular place he served the same, and that he knew the person served to be the person mentioned and described in the summons as defendant therein, and also to state in his affidavit whether he left with the defendant such copy as well as delivered it to him." Supreme Court Rules, Appendix.

a. Where the proof of service is the sheriff's certificate, he should state or refer to the name of the cause, and that the summons served by him was in that cause; for 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 Pr. R., 841; 1 Code Rep. N. S., 42.

b. The certificate of a sheriff of a county in another State, of having made service of a paper, 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 Abbott, 126.

c. The return of the sheriff, or the affidavit of any other person, of the service of a summons, is not conclusive on the defendant. He may disprove the fact of service, on a motion to set aside the proceedings. Van Rensselaer v. Chadwick, 7 Pr. R., 297.

d. 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. Similar language in the statute regulating foreclosures by advertisement was so construed by Hand, J., (Bunce v. Reed, 16 Barb., 350,) he says, Although the words printer and publisher differ in their etymology and in many respects in their uses, printer and publisher may be considered as synonymous for this purpose, the latter being within the spirit of the statute.

e. 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. Thus, per Sill, J., "The service upon the defendants is sought to be proved by an admission, purporting to be signed by them; but there is nothing showing that the signatures are those of the defendants, or were placed there by their direction. The court takes judicial notice of the signatures of its officers, because they are such; but there is no legal fiction by which the court is presumed to know the signature of a party defendant who has not appeared in the cause. 2 Hill, 369. Litchfield v. Burwell, 5 Pr. R., 341; 1 Code Rep. N. S., 42.

f. 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 Pr. R., 30.

See note to section 134.

§ 139. (Amended 1851.) When jurisdiction 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.

The words in italic were added in 1851.

g. Where the service of the summons is by publication, the action is not commenced until the expiration of the time prescribed for publication. Moore v. Thayer, 6 Pr. R., 47; 3 Code Rep., 176, but where an attachment had been issued against defendant, and an order made to serve the summons by publication, and before the summons was complete the defendant died, the court held, that although the action was not commenced within section 137, or section 99, yet the plaintiff had, by virtue of the attachment and this section, acquired a provisional lien on the defendant's property, which was a right secured to him by this section. Ib.; and Burkhardt v. Sanford, 7 Pr. R., 329; Re Griswold, 13 Barb., 412.

a. A voluntary and general appearance, besides being equivalent to a personal service of the summons, is a waiver of all defects in the suminons or previous proceedings. See Webb v. Mott, 6 Pr. R., 440; Dix v. Palmer, 5 ib., 233; 3 Code Rep., 214; Trapp v. N. Y. and Erie R. R. Co., 6 Pr. R., 237; 1 Code Rep., N. S., 384, and notes to sections 128 and 129 of this code. Hyde v. Patterson, 1 Abbott,

248.

6. A party may appear merely to object to the jurisdiction or to the process. Ib. e. Where the defects in the summons or proceeding prior to appearance are not made apparent until after the notice of appearance is served, then the appearance is no waiver. Voorhies v. Schofield, 7 Pr. R., 51.

d. In the superior court it has been held that one of several defendants jointly liable in a judgment cannot appear under protest to the jurisdiction and object that it does not appear on the face of the proceedings either that he resides or was personally served with process within the city of New York. Section 139 makes such an appearance equal to a personal service. Mahaney v. Penman, 1 Abbott, 34.

e. "It was always the case that by a voluntary appearance the defendant admitted that regular process had been regularly served. But it was 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. Thus where an injunction had been granted affecting the right of a party not served with a subpoena, he was allowed to appear voluntarily and join in a motion to dissolve the injunction. (Waffle v. Vanderheydon, 8 Paige, 45.) So in the Georgia Lumber Co. v. Bissell (9 Paige, 226), it was held that a defendant arrested upon a ne exeat might without waiting to be served with a subpoena, enter his appearance and demand a copy of the bill." (Harris, J., Tracy v. Reynolds, 7 Pr. R., 328.) Thus where one of several persons named as defendants in the summons, but on whom no copy had been served, gave notice of appearance and demand of copy complaint, and, no copy 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. Ib.

f. The superior court have decided 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. And per Bosworth, J., "I think the plaintiff is wrong in the position that a person named as a defendant and against whom personally a judgment is prayed, has no right to appear and answer until he has been served with a summons. The code (s. 139) declares the voluntary appearance of a defendant equivalent to personal service of the summons on him. This assumes that he has the right to appear. It subjects him to the same liabilities as if personally served with process; and it would be a strange construction of this part of the code that should hold he did not thereupon acquire all the rights of a party actually served. The practice was settled in chancery in accordance with the view here expressed, and numerous cases on the subject are collected in vol. i. of Barb. Ch. p. 81, under the head of Appearance gratis," Ib.

§ 140. [118.] (Amended 1849-1852.) Forms of pleading. All the forms of pleading heretofore existing are abolished; and, hereafter, the forms of pleadings in civil actions in courts of record, and the rules by which the sufficiency of the pleadings are to be determined, are those prescribed by this act.

a. This section supplies the place of section 118 in the code of 1848. That section enacted "All the forms of pleading heretofore existing are abolished; and hereafter the forms of pleading in civil actions, and the rules by which the sufficiency of the pleadings is to be determined, shall be those which are prescribed by this act."

b. As the section stood in the codes of 1849 and 1851, and until the amendment of 1852, it read as follows: "All the forms of pleading heretofore existing, inconsistent with the provisions of this act, are abolished; and hereafter the forms of pleadings in civil actions in courts of record, and the rules by which the sufficiency of the pleading is to be determined, are modified as prescribed by this act."

c. It will be seen, therefore, that the amendment of 1849 consisted of the insertion of the words "inconsistent with the provisions of this act," and the words "in courts of record ;" and that the amendment of 1852 consisted of striking out the words "inconsistent with the provisions of this act," and substituting the word those" for the words "modified as."

d. All forms and rules of pleading are abolished, and the rules for testing the suffi ciency of a pleading are those prescribed by the code. Royce v. Brown, 3 Pr.R., 390.

e. The code has not changed the common-law rule of pleading, that a man may waive the tort and sue on the contract. Hinds v. Tweddle, 7 Pr. R., 278. Thus, where the complaint alleged that plaintiff delivered to defendants a quantity of hops to be taken care of and returned to plaintiff on request, and that defendants, “with

out the leave or license of plaintiff, appropriated said hops to their own use, and thereby became indebted to the plaintiff, &c.," it was held that the plaintiff might complain in this form; and see 16 Barb., 633; 3 Pr. R., 378.

a. In the previous editions of this work a large space is here devoted to a consideration of the question what system of pleading is to be adopted, the chancery or the common law? and all the reported decisions and dicta on the subject are there collected. Experience seems to have settled the question, and we take it to be almost unanimously conceded that it was not the intention of the codifiers to adopt either of the previous systems of pleading, but to introduce an independent system of which the provisions in the code were to be the exponents. (Bush v. Prosser, 1 Kernan, 347). The note in the previous editions will be found interesting and valuable to students, as the opinions cited contain a large amount of learning on the subject of the principles of pleading.

8141. [119.] Complaint.

The first pleading on the part of the plaintiff, is the complaint.

§ 142. [120.] (Amended 1851.) Complaint, what to contain.

The complaint shall contain:

1. The title of the cause, specifying the name of the court in which the action is brought, the name of the county in which the plaintiff desires the trial to be had, and the names of the parties to the action, plaintiff and defendant.

2. A plain and concise statement of the facts constituting a cause of action, without unnecessary repetition.

3. A demand of the relief to which the plaintiff supposes himself entitled. If the recovery of money be demanded, the amount thereof shall be stated.

Note to subd. 1

b. Where objection was taken to the entitling of the complaint, because the names of all the parties were not fully stated in the caption,-the title being "Emily Hill, &c., agt. Christian L. Thacter," instead of "Emily Hill by Daniel Hill, her guardian, against Christian L. Thacter,"-but it appeared that the names were given in the body of the complaint correctly; held, that the names appearing in the body of the complaint in a manner to be understood "by a person of common understanding," the requirements of the code were satisfied. Hill v. Thacter, 2 Code Rep., 3; 3 Pr. R., 407.

c. It has been said that where the action is in a court of local jurisdiction, as in the New York common pleas, where the trial can only be had in one county (uamely New York), that the complaint would be sufficient without stating the name of the County in which the plaintiff desires the trial to be. His bringing his action in such court sufficiently indicates his desire to have the trial in the county in which the court has jurisdiction. Leopold v. Poppenheimer, 1 Code Rep., 39.

d. Where the complaint omits to mention the name of the county in which the trial is desired to be had, the proper course for the defendant, to take advantage of the omission, is by motion to set aside the complaint for irregularity. Hall v. Huntly, 1 Code Rep. N. §., 21 n; and after notice of such a motion the plaintiff cannot supply the omission by an amendment of course, he cannot amend except on the terms of paying the costs of the motion. Ib. and Williams v. Wilkinson, 1 Code Rep. N. S., 20.