necessary there should be any averment in the pleadings, of the defendant's liability to be arrested. It is enough, to justify such arrest on final process. that the case is one in which the defendant may, under the code, be arrested, and one in which, before judgment, an order for his arrest has been obtained. Corwin v. Freeland (Court of Appeals, Oct., 1852), 5 Mon. L. R., N. S., 400; and see to the like effect Field v. Morse, 8 Pr. R., 47.

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, "without 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 Crippin, J., said, "Previous to the code, the law was well settled in this State that the plaintiff might waive the tort in a case for the conversion of property, and declare in an action of assumpsit to recover the value thereof. Putnam v. Wise, 1 Hill, 240, note; Cummings v. Vorce, 3 Hill, 283; Berley v. Taylor, 5 Hill, 584, note a; Osborn v. Bell, 5 Denio, 370; Moran v. Dawes, 5 Cow., 412; Orange Bank v. Brown, 3 Wen., 158. The true rule is stated in Young v. Marshall, 8 Bing., 43, which is, that no party is bound to sue in tort where, by converting the action into an action of contract, he does not prejudice the defendant. Generally speaking, it is more favorable to the defend-" ants to be prosecuted upon contract than tort, for that form of action lets in a set-off, and also releases the body from imprisonment on the judgment. The plaintiff, in such case, waives his claim to damages for a wrong committed by the defendant, and seeks to recover only the proceeds or the value of the property. It would be difficult to find a case in which the defendant would be prejudiced by a waiver of the tort, and resorting to the implied contract for redress. I am not prepared to adopt. the conclusion that the legislature intended by any provision of the code to change the common-law rule so as to deprive the party of the right to waive the tort, and bring an action on the contract.”

The complaint should agree with the summons in the description of the parties: thus, where a plaintiff in the summons described himself as "administrator," &c., and in the complaint did not so describe himself, and set forth a cause of action accruing to him in his own right, it was held that the complaint was irregular, Blanchard, Admin. v. Strait, 8 Pr. R., 83; and where in an action against two defendants whose true

names were Isaac N. Hart, and Simon Spear, the copy summons and complaint served on the defendant Hart, stated the names of the defendants as Isaiah N. Hart, and Samuel Spear, and the copy summons served on the defendant Spear, stated the names of the defendants as Israel N. Hart and Samuel Spear; but in the copy complaint served on Spear, the defend ants' names were stated as Isaiah N. Hart and Samuel Spear, the summons and complaint were set aside as irregular; and Strong, J. said, " Prior to 1825, it was the practice to set aside process and subsequent proceedings for misnomer of defendants, if they applied before appearance, and before the time for pleading had expired. (4 Cow., 148.) But in that year a general rule was adopted by which it was declared, that the court would not entertain such motions in future, but would leave the parties to the remedy of a plea in abatement (4 Cow., 157.) No similar provision is contained in the present rules of the court, and it is doubtful whether under the code the former remedy in such case, of a plea in abatement, exists. There should be some remedy; and I am inclined to think the practice which existed before the rule of 1825, of moving the court to set aside the proceedings, is now in force under rule 92 of the rules of 1847."-[now rule 90.] Elliott v. Hart & Spear, 7 Pr. R., 25.

By laws of 1847, Chap. 464, p. 632, persons are authorized to change their names by obtaining an order for the purpose, as there prescribed; and by § 7 of that act, it is enacted: If any suit or legal proceeding shall be commenced by his former name, against any person whose name shall have been changed pursuant to this act, such suit or proceeding shall not be abated, nor any relief or recovery sought thereby be prevented, by such misnomer, but the plaintiff, or party instituting such suit or proceeding, may amend in respect to the name of the person against whom it shall be commenced, at any time, and without costs.

In actions in which no order of arrest has been obtained, and where several defendants are named in the summons, but the summons is served on one defendant only, the plaintiff may deliver a complaint against only the one upon whom the summons was served, and omit in the complaint the names of the defendants not served. Travis v. Tobias, 7 Pr. R., 90. And in deciding that case, Willard, J., said, "The first objection is, that the summons is against three persons, and the complaint against one alone. Under the former practice, where the writ did not require special bail, several persons might be named as defendants, and the plaintiff might declare and proceed against any one of them sep

arately.

Roosevelt v. Soulden, 16 Johns. R., 44; Montgomery v. Hasbrouck, 3 Ib., 538. Such was also the English practice, 4 T. R., 696, 697; 5 Ib., 722. But in bailable actions, when the defendant was held to bail, the plaintiff was bound to pursue the process in his declaration; and if he failed to do so, the court would set aside the proceedings for irregularity, Rogers v. Rogers, 4 Johns. R., 485; and even in such actions, although the defendant was not held to bail, the proceedings would be set aside if the declaration departed from the writ with respect to the number of defendants. Bell v. Carroll, 1 Cow. 193. There is nothing in the code which prevents the application of these principles to an action commenced by summons. It is not perceived how the defendant on whom the summons is served, can be prejudiced by the plaintiff's failing to proceed against the other defendants named in it. I think the plaintiffs are regular in delivering a complaint against the defendant on whom the process was served, omitting the names of the other defendants mentioned in the summons. This is a different question from that decided in Russell v. Spear, 5 Pr. R., 142. See also Tracy v. Reynolds, 7 Pr. R., 327." The question decided in Russell v. Spear, supra, was that a plaintiff had no right to amend his complaint by striking out the name of one or more parties, without leave of the court.

Where a complaint alleged that the defendant, on, &c., “was, and still is, indebted to the plaintiff in $1,000, for divers personal property sold and delivered to defendant by plaintiff, and for work, labor, care, and diligence of the plaintiff, by himself and his wife and servants done and performed for defendant, in and about the business of defendant; also, for divers materials, and other necessary things found, provided, used, and applied, about that work by plaintiff, at defendant's request; and for money had and received by defendant to and for the use of plaintiff; and for money paid, laid out, and expended, by plaintiff for defendant, at his request; and for money lent and advanced by plaintiff to defendant; and also on an account stated between the parties,”Crippen, J., said, "The complaint is also indefinite and uncertain. It appears to me this mode of declaring is a clear departure from the letter and spirit of the code. No one can deny that it is manifestly indefinite and uncertain, and widely departs from a plain and concise statement, constituting the plaintiff's cause of action. The true rule under the code is, that the facts constituting the cause of action, or ground of defence, should be set forth in a plain, direct, definite, and certain manner. The complaint in this case wholly omits to state the time, place, quantity, or

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description of the personal property alleged therein to have been sold and delivered to the defendant. Neither does it set forth the value thereof, or the amount claimed therefor. The same uncertainty and vagueness appertains to each of the several demands or claims set forth in the complaint. In my opinion, the common counts under the former system of pleading are not sufficiently definite and certain to be adopted under the code; a more definite, certain, and truthful statement should be given. The complaint is also irregular, on the ground of a noncompliance with rule 87 of this court." Blanchard v. Strait, 8 Pr. R., 85.

Although section 118 says that any person may be made defendant, who has or claims an interest in the controversy adverse to the plaintiff, yet I apprehend something more is necessary to be stated in the complaint, than merely that they claim such interest, especially if the claim is controverted. The nature of the claim should be stated, otherwise there would be no method of ascertaining whether it could be joined with the main subject of litigation, under section 167." Per Pratt, J., in Stryker v. Lynch, 11 Leg. Obs., 116; and where, in a partition suit, the complaint alleged that Mary H. Bolton, and five other defendants, "claimed some right, interest, estate, or title, in the lands in question, or to some part thereof, but that their claim was illegal, inequitable, and void; yet they claim an interest adverse to the plaintiff, and to the other defendants, and are, therefore, necessary parties to a complete determination of the question involved in the action;" and prayed that said Mary H. Bolton, and the said five other defendants, be adjudged to have no estate or title in the land, and be for ever barred from claiming the same, it was held, that said allegation was bad in form, and entitled the defendants to judgment on demurrer to the complaint. Ib.

Where a complaint stated that plaintiffs insured the owner of the canal-boat Cambria, for account of whom it might concern, upon all goods, &c. on board said boat, against damage from the perils of the seas, rivers, canals, &c.; and that afterwards, and while said boat was navigating the Erie canal, laden with goods, the canal-boat H. Putnam, owned and navigated by defendants, by the carelessness and negligence of defendants, came into collision with the said boat Cambria, by means of which the goods on board the latter were injured to the amount of $583, which sum the plaintiffs, as such insurers, had been compelled to pay; and claimed judgment for that amount,-on demurrer to the complaint, that it did not state facts sufficient to constitute a cause of

action, Seldon, J., said, "This case presents the question, how far the code has converted what before was a mere equity, into a strictly legal right, and to what extent it has abolished the distinction between legal and equitable remedies. It is not claimed that the facts in the complaint in this case would, prior to the code, have been sufficient to maintain the action; but it is supposed that, as the insurance company would be entitled to the avails of any recovery against the defendants, the action must, pursuant to section 111, be brought in its name. It becomes ne- ' cessary, in this case, to give some interpretation to section 111. Very little has yet been done by judicial decisions to settle its meaning. The question must be presented in a variety of cases, and under a variety of forms, before the limits of the change it has introduced can be accurately and with certainty defined. It may, however, be safely assumed, that it was not intended to convert, in all cases, a mere equitable into a legal title. It would require language far more clear and explicit, to introduce so important a change. For instance, a man has entered into a written contract for the purchase of land, and has paid the purchase-money; is he, by force of this section, invested with the legal title, and can he bring an action to recover the possession? Is an obligation to convey, which equity will enforce, made by this legislative provision equivalent to a conveyance? No one would venture to assert this. So of personal property. An obligation to sell, however imperative, cannot be made the same thing as an actual sale, nor can the remedy upon it be the same. In view of these examples, we may safely affirm that the legislature never intended by section 111 to go the absurd length of providing that an action purely legal might be maintained upon a right or title purely equitable. Such a provision would uproot multitudes of fixed legal ideas, and abrogate the distinctions which form part of the web and fibre of our judicial system; nay more, it would be virtually enacting that things in nature different, shall in law be the same—a stretch of legislative power which has not yet been attempted in this State. It has been said in some of the early cases under the code, that the effect of section 111 is to apply to all cases, with slight modifications, the rules in relation to parties which formerly obtained in courts of equity. But further experience and reflection have served to show that this cannot with propriety be done; and there is no necessity, in order to give full scope to section 111, for putting this broad construction upon it. As the rule in equity has always been in accordance with the provisions of that section, it must have been intended to introduce some change in respect to plaintiffs in actions of a purely legal nature; and as the rule has always been, and is still, that such actions must be prose