would take judgment for $150 and interest. The plaintiff afterwards perfected judg ment for want of an answer, without any application to the court, for the sum of $158 99. On granting the motion, Harris, J., said,

"But the defendants insist that the plaintiff could not regularly perfect his judgment without application to the court. I think they are right in this position. Under the common law practice, the plaintiff might bring his action against a common carrier, either in assumpsit or upon the case. In the one case, it was founded upon the promise which the law implies to perform a duty; in the other, upon the injury resulting from a breach of duty. In either case, the real gravamen of the action was the negligence or misfeasance of the carrier in the performance of his duty. I admit that there is some difficulty in defining the exact boundary between "actions on contract for the recovery of money," embraced in the first subdivision of the 246th section of the code, and the "other actions" to which the second subdivision applies. There are some actions which are, in their form, clearly actions on contract, and brought for the recovery of money, and yet are, in their nature and character, actions sounding in damages. Such is the action for breach of promise of marriage. On a former occasion, I felt constrained to hold that the provisions of the first subdivision above mentioned, were applicable to such an action. I confess I never felt quite satisfied with that decision (Williams v. Miller, 4 Pr. R, 94). The same view had previously been taken by the New-York common pleas, in Leopold v. Poppenheimer, 1 Code Rep., 39. Although these cases seem too plainly within the language of the first subdivision to allow an escape, yet I should not regret to see them examined and disapproved. The rule ought to be, that when the action is brought for the recovery of a money demand, or a sum certain, judgment may be perfected without application to the court, but in all other cases such application should be required.

"In relation to actions against common carriers, I concur in the views expressed by Mr. Justice Johnson, in Clor. v. Mallory, (1 Code Rep., 126). Though a contract, express or implied, may be involved in the action, it is really founded upon the negligence or misfeasance of the carrier. It was so regarded under the former practice. When interest might be collected only upon a judgment recovered in an action upon contract, it was not allowable to collect it upon a judgment against a common carrier, even though the declaration had been assumpsit in form. It was so held, upon the ground, that whatever the form of the action, it was, in truth, an action on the case, (2 R. S, 364, s. 9). In McDuffie v. Beddoe (7 Hill, 578), a party, who had purchased a stock of goods at cost prices, had paid for them at the price at which they had been inventoried. Afterwards he filed his bill, alleging that the inventory price exceeded the contract price, and that he had thus been defrauded by the vendor. It was held, that this was not an action founded upon contract, although, to maintain it, it was necessary to allege and establish an express contract. Fraud was the gravamen of the complaint, and the party against whom judgment was recovered, was held to be liable to imprisonment on that account.

"Although an action against a common carrier, did at common law possess the amphibious character to which I have referred, being made either an action ex contractu or ex delicto, at the option of the pleader, I am unwilling to admit that it has brought that feature with it into the new system. I think it bears more resembblance to the family of torts than contracts; and, it ought not to be allowed any of the exclusive privileges that pertain to the latter. I shall hold therefore, that the plaintiff was irregular, in perfecting his judgment without application to the court." In an action to recover the price of goods sold and delivered, the summons stated that the plaintiff would apply to the court on a specified day for the relief demanded in the complaint; held that the summons was in the wrong form, and that it ought to have been in the form prescribed by subdivision 1 of section 129, and motion for judgment as for default of an answer was denied. Diblee v. Mason, 1 Code Rep., 37.

Does the defendant waive a defect in the summons, by lying by, and permitting the plaintiff to take judgment? James v. Kirkpatrick, 3 Code Rep., 174. 5 Pr. R., 241.

A mistake in the form of the summons, may and will be waived by the appearance of the defendant. Diz v. Palmer, 3 Code Rep., 214; 5 Pr. R. 233. Webb v. Mott. 6 Ib. 440, see note to section 128 of this code."

Where in a foreclosure action the summons stated that judgment would be taken for a specific sum, but the complaint prayed only a sale and payment of the proceeds,

the motion for judgment was denied, without prejudice to a motion to amend the Wyant v. Reeves, 1 Code Rep., 49.

summons.

As to amending the summons, see note to section 128 of this code.

§ 130. [109.] (Amended 1849-1851.) Service of complaint. -A copy of the complaint need not be served with the summons. In such case the summons must state where the complaint is or will be filed; and if the defendant, within twenty days thereafter, causes notice of appearance to be given, and in person, or by attorney, demands in writing a copy of the complaint, specifying a place within the State where it may be served, a copy thereof must, within twenty days thereafter, be served accordingly, and after such service, the defendant has twenty days to answer; but only one copy need be served on the same attorney.

This section comprises only a portion of section 130 of the code of 1849, the remaining portion is embraced in section 131. The amendment of 1851, consists further of the substitution of the words "must" and "twenty" for the word “shall," and "ten" respectively, and the insertion of the words "is or" and causes notice of appearance to be given and" severally printed in italic.

It will be observed that this section in the code of 1849, did not mention within what time after demand made, the copy of the complaint was to be served; but, after some little conflict of opinion it became settled that it must be served within 20 days after demand. Littlefield v. Mervin or Murin, 2 Code Rep., 128. 4 Pr. R., 306. Ecles v. Debeand, 2 Code Rep., 144. Colvin v. Braden, 3 Code Rep. 188, 5 Pr. R., 124. Munson v. Willard, 5 Pr. R., 263, 3 Code Rep., 250. If the summons state that a copy of the complaint had been filed, instead of stating that the complaint had been filed, it is not such an irregularity as will vitiate a judgment entered for default of an answer. Hart v. Kremer, 2 Code Rep, 50; but if the complaint is filed, and no copy is served with the summous, if the summons instead of stating where the complaint is filed, states that a copy of the complaint "is annexed," the summons will be irregular, and may be set aside on motion. Keeler v. Belts, 3 Code Rep., 183; but such a summons is not a nullity, and if the defect can be remedied without doing injustice, and especially if no injury has been occasioned by the omission, it is the duty of the court to disregard it or allow an amendinent. Ib. If the defendant does not demand a copy of the complaint within twenty days after service of the summons, the plaintiff is not obliged to serve a copy. Engs v. Overing, 2 Code Rep., 79. Bennett v. Delicker, 3 Code Rep., 117. But in such a case the court on motion of the defendant, made an order for a copy to be served. Ib. The defendant had to pay the costs of motion, but was not obliged to swear to merits. In cases, however, where the complaint is on file, it may be the better course where the defendant omits to make the demand in due time, for him to obtain a copy from the complaint on file, instead of moving for an order on the plaintiff to furnish a copy.

After the demand of a copy of the complaint duly made, the plaintiff may on showing ground therefor, obtain further time to furnish a copy of the complaint. Littlefield v. Merwin or Murin, 2 Code Rep., 128. 4 Pr. R., 306. But in case no copy is served within twenty days after demand, or within such further time as may be granted for the purpose, the defendant may move for an order dismissing the complaint, and for a judgment in the nature of a non pros. Ib.

An order giving the plaintiff further time to serve his complaint, cannot be granted ex parte, after the time for serving the complaint has expired. Stephens v. Moore, 4 Saud. S. C. R., 674. So that where, after the time for serving the complaint had expired, the plaintiff applied to a judge ex parte, and obtained an order giving him five days' further time in which to serve a complaint, it was held, that under section 405 of the code, an order enlarging the time, &c., could not be made

after the time had actually expired, unless the adverse party had notice of the application. Ib.

A motion for judgment for not serving a copy of the complaint must, where no complaint is filed, be made in the district, or in a county adjoining the county in which the summons states the complaint will be filed. It will be presumed that the place of trial of the action is the county where the summons states the complaint will be filed. Johnston v. Bryan, 1 Code Rep. N. S., 46.

After the complaint is served the defendant must answer in twenty days, or within such further time as he may obtain by order. Mandeville v. Winn, 6 Pr. R., 461; 1 Code Rep. N. S., 161. See Dudley v. Hubbard, 2 Code Rep., 70 Graham v. McCoun, 1 Code Rep. N. S., 45; Foster v. Udell, 2 Code Rep., 70, and

note to section 143 of this code.

Where the service is by publication, the complaint must be first filed. Sec. 135.

§ 131. [110.] (Amended 1851.) Notice of no personal claim. -In the case of a defendant* against whom no personal claim is made, the plaintiff may deliver to such defendant, with the summons, a notice subscribed by the plaintiff or his attorney, setting forth the general object of the action, a brief description of the property affected by it, if it affects specific, real, or personal property, and that no personal claim is made against such defendant, in which case no copy of the complaint need be served on such defendant, unless within the time for answering he shall, in writing, demand the same. If the defendant on whom such notice is served, unreasonably defend the action, he shall pay costs to the plaintiff.

This section is composed of a part of section 130, and all section 131, as they stood in the code of 1849.

The amendment of 1851 to the portion of section 130 of the code of 1849 comprised in this section, consists of the omission of the words "in an action for the partition of real property or for the foreclosure of a mortgage," at the point where the asterisk is placed, and the insertion of the words "if it affects specific, real, or personal property," printed above in italic.

Prior to this amendment, the cases in which the notice of no personal might be served, was limited to actions for the partition of real property and the foreclosure of a mortgage. Now the notice may be served in every description of action. The provision is analogous to the rule in equity in mortgage cases, and to a rule of practice of the court of chancery in England. The necessity of this provision arises from the fact, that under the present system, as under the late chancery practice, all who fill the character of defendant are not necessarily adverse to the plaintiff, or interested in resisting the judgment sought to be obtained by the plaintiff. This provision is intended, therefore, to save the expense occasioned by persons so situate, making a defense. In case a husband and wife are defendants, and no personal claim is made on either, service of a copy of the summons and of no personal claim on the husband would suffice for both. Kent v. Jacobs, 5 Beav., 48; and see Jay v. Ensign, 9 Paige, 230, and note to section 134 of this code."

The notice of the object of the action is not a part of the process by which the action is commenced. The plaintiff may serve such a notice, or a copy of the complaint with the summons. He is not bound to serve either. Where service is made by the sheriff, he does not serve the notice of the object of the action as part of his official duty in serving process. The law provides no specific fee for this service, whether made by the sheriff or any other person. Where the service of such notice is necessary, the expense necessarily incurred in making the service is a reasonable disbursement, whether the service be by the sheriff or any other person. If the service is by the sheriff the compensation cannot be allowed as a "sheriff's fee." The

superior court have decided to allow 374 cents for the service of notice of the object of the action, when it is shown to be a necessary and reasonable disbursement. Gallagher v. Egan, 2 Sand. S. C R., 745; S. C., 3 Code Rep., 203. No charge for certificate of service is allowed. The certificate of service of the notice of the object of the action is usually included in the certificate of the service of the summons.

§ 132. [111.] (Amended 1849-1851.) Notice of lis pendens. -In an action affecting the title to real property, the plaintiff at the time of filing the complaint, or at any time afterwards, may file with the clerk of each county in which the property is situated a notice of the pendency of the action, containing the names of the parties, the object of the action, and a description of the property in that county affected thereby; and if the action be for the foreclosure of a mortgage, such notice must be filed twenty days before judgment, and must contain the date of the mortgage, the parties thereto, and the time and place of recording the same. From the time of filing only shall the pendency of the action be constructive notice to a purchaser or incumbrancer of the property affected thereby.

The notice of lis pendens, must be filed in all cases where the action is for the foreclosure of a mortgage. Brandon v. McCann, 1 Code Rep., 38; and where the plaintiff, after filing a notice of lis pendens, amends his complaint by making new parties, or by altering the description of the premises affected, or so as to extend his claim against the premises, he must file a new notice. Curtis v. Hitchcock. In Chanc. 143. not reported, and see rule 46 of supreme court rules. Fee on filing notice of lis pendens, 18 cents.

§ 133. [112.] Summons by whom served.-The summons may be served by the sheriff of the county where the defendant may be found, or by any other person not a party to the action. The service shall be made, and the summons returned with proof of the service to the person whose name is subscribed thereto, with all reasonable diligence. The person subscribing the summons may, at his option, by an endorsement on the summons, fix a time for the service thereof; and the service shall then be made accordingly.

A summons, or summons and complaint, delivered to the sheriff for service, must be served and returned within a reasonable time. Anon., 10 Wend., 572. See rule 6 of the supreme court rules in appendix.

§ 134. [113.] (Amended 1849-1851.) Service of summons. -The summons shall be served by delivering a copy thereof as follows:

1. If the suit be against a corporation, to the president or other head of the corporation, secretary, cashier, treasurer, a director or managing agent thereof; but such service can be

made in respect to a foreign corporation, only when it has property within this State, or the cause of action arose therein.

2. If against a minor under the age of fourteen years, to such minor personally, and also to his father, mother, or guardian, or if there be none within the State, then to any person having the care and control of such minor, or with whom he shall reside, or in whose service he shall be employed.

3. If against a person judicially declared to be of unsound mind, or incapable of conducting his own affairs in consequence of habitual drunkenness, and for whom a committee has been appointed, to such committee and to the defendant personally.

4 In all other cases to the defendant personally.

The words in italic are additions, and constitute the amendments to this section.

Note to subd. 1.

To authorize legal service of summons and complaint upon a foreign corporation, where it is made upon its managing agent in this State, the managing agent must be one whose agency extends to all the transactions of the corporation-one who has, or is engaged in, the management of the corporation in distinction from the management of a particular branch or department of its business. Brewster v. Michigan Central R. R. Co., 5 Pr. R, 183. 3 Code Rep., 215, and on the question, who is a managing agent within the meaning of the term in this section? Wells, J., said :

"The service in question was upon an individual who, assuming the facts as contended for by the plaintiff, was at most an agent for the defendant in a particular department of its operations, and whose powers must have been comparatively very much limited in their scope and object, and probably confined to the particular department of the business in which he was employed. It seems to me he cannot be regarded as a managing agent of the corporation within the mea ing of the section of the code referred to. He was not a managing agent of the corporation. The most that can be said of him is, that he was employed in a particular branch of the business transacted by the defendants, with power to employ other persons as assistants, and perhaps with other incidental powers to enable him to carry into effect the general object of his particular agency; and perhaps also with powers to bind the defendant by his contracts. But it seems to me all this could never constitute him a managing agent of the defendant in such a sense as to render service of the summons upon him a good commencement of an action against the defendant. Every employment of another is an agency, in the general sense of the term; and whenever such employment is accompanied by any discretion in the agent, he may be said to be, in such general sense, a managing agent.

"An attorney for a bank, or other corporation has demands put into his hands to collect, with discretionary power in regard to their management, as to when and how to prosecute, or to compromise for the same, &c. In such case the attorney for the bank would be as much the managing agent of the corporation appointing him, as Reed in this case was the managing agent of the defendant. They were both in the employment of their principals, and both had certain discretionary powers. The attorney was the managing agent of his employer in collecting or securing the demands put into his hands, and Reed was the managing agent of the defendant to procure business for the line of steamers and the railroad; and yet, could it be pretended that an action could be commenced against the bank or other corporation in the case supposed, by service of the summons on the attorney? Most clearly not. The managing agent upon which the summons may be served, must be one whose agency extends to all the transactions of the corporation; one who has, or is engaged in, the management of the corporation, in distinction from the management of a particular branch or department of its business.

“This, I apprehend, is the only safe rule that can be adopted; once depart from