city, (2 Johns. Cas. 335,) or, in an action for slander or libel, that a violent party spirit prevailed in the county. 1 Caines' R. 487. And the existence of a strong popular excitement in a county, on the subject matter of a libel suit, was held to be no cause for refusing to change the place of trial on an ordinary affidavit. 2 Wend. 250. 3 Caines' R. 127. But the place of trial was changed on the ground of excitement, after two ineffectual attempts to obtain a verdict in the county where it was laid. 12 Wend. 203. And it was held sufficient cause to change the place of trial, that the circuit judge of the district where the venue was laid, was previous to his appointment counsel in the cause. 2 Wend. 290.

A supposed excitement, or prejudice, which makes it doubtful whether a fair and impartial trial can be had in the county, to which it is moved to change the place of trial, is no cause for refusing the motion. The inability to obtain a fair and impartial trial must be clearly established. An actual experiment, by way of trying the cause, or attempting to impannel a jury, should first be made. People v. Wright, 3 Code Rep., 75, and per Parker, J., 5 Pr. R., 23.

"It appears by the affidavits that the matters in controversy have been the subject of general conversation and comment throughout the county;—that feelings and prejudices exist and that the deponents believe the electors of the county have generally and almost universally formed and expressed an opinion on the merits, which they would not be likely to change. That such matters have been the subject of newspaper discussion in said county, and that there has been, and is much excitement on the subject, and that it is very doubtful whether a fair and impartial trial can be had in said county of Rensselaer. Do these allegations furnish a sufficient reason against the trial being held in the county of Rensselaer?"

Bernam v. Ely, 2 Wend. 250, was an action for the publication of a handbill, alleged to be libellous, issued immediately before an election by the defendants, styling themselves to be the anti-masonic central committee. The defendants moved to change the venue from Oneida to Monroe. The motion was opposed on the affidavit of several individuals, in which they stated that from their knowledge of the excitement then existing on the subject of masonry, they believed the plaintiff could not have a fair and impartial trial before a jury of Monroe county.

But the court granted the motion, and said they would not, on any speculativeopinion formed by individuals, however respectable, interfere with the ordinary course and practice of the court in the administration of justice. Marcy, J., said, "pervading as may be the excitement referred to, the court repose confidence in the intelligence and integrity of the freeholders of Monroe. Should it unfortunately happen that the apprehension of the plaintiff is realized, he will not be remediless, as it will then be in sufficient time to interpose the strong arm of the law, to cause the course of justice to flow unpolluted by passion or prejudice."

The same rule was followed in Messenger v. Holmes, 12 Wend. 203, where a motion was made to change the venue on the ground of excitement, after two trials: of the cause, in neither of which the jury were able to agree. The court held, that the case came within the principle stated in Bowman v. Ely, and granted the motion. Savage, Ch. J., said," when it is found by actual experiment, that a fair trial, or as in this case, no trial can be had in the county where the venue is laid, the motion on the ground relied on in this case will be granted, but otherwise not."

But it is claimed on the part of the plaintiff, that the rule thus laid down in the cases above referred to has been changed by the case of People v. Webb, 1 Hill, 79, where, without an attempt to try the cause, the venue was changed from Otsego, to Montgomery, on motion of the district attorney, on the ground of excitement and improper influences in the former county. The rule was certainly so far relaxed in the last cited case, as to hold that an actual experiment, by way of trying the cause, or attempting to impannel a jury, was not the only evidence thecourt would receive as proof that a fair and impartial trial could not be had in the county where the venue was laid-the motion was granted principally upon the ground, that it appeared that the defendant had improperly attempted to influence the jurors drawn at a previous court of oyer and terminer in Otsego county, by sending to them newspapers containing articles tending to prejudice their minds against the prosecutor, in respect to the trial-and that he had also influenced and misled the public mind by circulating libellous articles throughout the country among those who were not subscribers for his paper.

In the later case of People v. Bodine, 7 Hill, 181, an application to change the

venue from Richmond county to New-York, was refused, notwithstanding there had been one trial in Richmond in which the jury did not agree. Ch. J. Nelson there stated that he had examined the subject with a view to settle some rule, by which cases of that kind might thereafter be governed. He held that it was not enough for jurors to state their belief that a fair and impartial trial could not be had in the county, but that the facts and circumstances forming the grounds of such belief must be stated, so that the court may judge for itself whether or not the allegation is well founded, and that the inability to obtain a fair and unprejudiced jury must be clearly established. To this extent the rule is consistent with all the cases above examined, and also with other authorities which I have not deemed it necessary to refer to. 1 Black. Rep. 378. 1 Chit. Crim. Law, 200. Roscoe Crim. Ev. 236.The People v. Vermilye, 7 Cowen, 137.

In People v. Bodine, it was said that the rule there recognized was founded on good sense, and that its practical operation would prove an essential check upon the facility with which motions may be got up from a too ready apprehension of undue prejudice."

It is said there is no statute under which the courts can order an issue of law to be tried out of the county originally specified in the complaint, or that substituted under section 126. And the cause must, for this purpose, be triable in the district where the venue is, regardless of any order that changes the place for trying an issue of fact. Gould v. Chapin, 4 Pr. R., 185. 2 Code Rep., 107. And where there are issues of law and fact, the court cannot change the place of trial. Clark v. Van Deusen, 3 Code Rep. 219. But on such a motion the court will look into the materiality of the issues of law, and if they are immaterial, will grant an order to change the place of trial. Ib.

With respect to the last clause in this section (126,) under the code prior to the recent revision, it was held that an order to change the place of trial did not carry with it a change of the venue in the cause. Barnard v. Wheeler, 3 Pr. R., 71, 72. Beardsley v. Dickerson, 4 Pr. R., 81. Lynch v. Mosher, Ib. 86. Gould v. Chapin, Ib. 185, 2 Code Rep. 107, and it was said that the effect of the order was to remove the place of trial of the issue of fact, and as a consequence the proceedings in the cause incidental to, and necessarily connected with the trial of the issue of fact. But that other proceedings in the action were not affected by the order. Ib. And considerable discussion occurred as to the proper county in which to move in any proceeding in the cause after an order had been made to change the place of trial: Thus where the place of trial named in the complaint (the venue) was Monroe county, and an order was afterwards made changing the place of trial to Albany county, it was held that the venue was not changed and that a motion for an extra allowance was properly made in Monroe county. Goald v. Chapin, 2 Code Rep. 107, 4 Pr. R. 185. And this decision as to this point, was sanctioned by the opinion expressed in Barnard v. Wheeler, Lynch v. Mosher, and Beardsley v. Dickerson, supra. And this section (126) appears comfirmatory of the previous practice, except where otherwise provided by consent of the parties or order of the court. Whether under the present provision a change of the place of trial is equivalent to a change of the venue, or transfers the cause for all purposes without or against the consent of all the parties, remains to be determined by judicial decision. Section 49 of the judiciary act, (Laws of 1847, p. 333,) provided only for a change of the place of trial of an issue of fact, and one argument used by Mr. Justice Sill in Gould v. Chapin, (4 Pr. R., 185,) to show that the change of the place of trial was not a change of the venue, or a transfer of the cause for all purposes, was, that no power existed in the courts to change the place of trial of an issue of law. By rule 3 of the supreme court rules it is provided, that in case the place of trial is changed for the reason that the proper county is not specified as required by section 125, of the code, papers on file at the time of the order making such change shall be transferred to the county specified in such order, and all others papers in the cause shall be filed in the county so specified.

SECTION 127.

128.

TITLE. V.

Manner of commencing Civil Actions.

Actions, how commenced.

Summons, requisites of.

129. Notice to be inserted in certain actions.

130. Complaint need not be served with summons.
131. Defendant unreasonably defending.

132. Notice of Lis pendens.

133. Service of summons.

134. Return of summons.

136. Proceedings when part only of defendants served.
137. When service by publication complete.

138. Proof of service.

139. When jurisdiction of action acquired.

$127. [106.]-Actions when commenced.-Civil actions in the courts of record of this State, shall be commenced by the service of a summons.

This section is identical with section 106 in the code of 1848, and where while that code was in effect a warrant under the Stillwell act was served simultaneously with, but issued before the service of the summons, in the action the warrant was held to be a nullity, being issued before any action was commenced. Lee v. Averill, 1 Code Rep. 73, 1 Sand. S. C. R. 731. The amendment to section 99 in the code as it now stands seems to have rendered this section only a repetition. See sections 99 and 74.

§ 128. [107.]-Summons-Requisites of.—The summons shall be subscribed by the plaintiff or his attorney, and directed to the defendant, and shall require him to answer the complaint, and serve a copy of his answer on the person whose name is subscribed to the summons, at a place within the State, to be therein specified, in which there is a post-office, within twenty days after the service of the summons, exclusive of the day of service.

This section is identical with section 107 of the code of 1848. It has given rise to some decisions to which we will proceed to refer.

It may be premised that the only mode of commencing an action under the code is by summons, (sec. 99, 127,) or the obtaining a provisional remedy (sec. 139,) Re Fort Plain and Cooperstown Plank Road Co., Ex parte Ransom, 3 Code Rep. 148, Moore v. Thayer. Ib. 176.

It will be observed that this section (128) neither directly nor indirectly, requires that a summons should name the court or the title of the action, and the form of summons recommended by the commissioners in their first report, contained neither the name of the court, nor the title of the cause. Nevertheless, the weight of opinion seems to be in favor of the insertion at least of the name of the court in the sum

mons.

Where the summons is annexed to a copy of the complaint, there can exist no necessity for repeating in the summons the name of the court, or the names of the parties; such information is supplied by the complaint. But where the summons is served without any copy of the complaint, as provided by section 130, then, of course, it becomes necessary to insert the name of the court, and the names of the parties in the summons; otherwise, a defendant would be left in ignorance of where he is to find a complaint filed, who is the plaintiff, and who his co-defendant, (if any,) and accordingly, in cases where no copy of the complaint was served with the summons, the court held that the summons must state the name of the court. Anon, 2 Code Rep., 75. Walker v. Hubbard, 4 Pr., R. 154. But in subsequent cases, (from the reports of which, however, it does not clearly appear whether or not any copy of the complaint was served with the summons,) the distinction between the cases in which a copy of the complaint is served with the summons, and in which it is not, appears to have been lost sight of, and the courts use language indicative of an opinion that, in all cases, the summons must state the name of the court in which the action is brought. Dix v. Palmer, 5 Pr. R., 233, 3 Code Rep., 214. James v. Kirkpatrick, 5 Pr. R., 241, 3 Code Rep., 174. It happened in one case that the name of the court in which the action was brought, was omitted both in the summons and complaint, and there the supreme court refused a motion for leave to amend by inserting the name of that court. Ward v. Stringham, 1 Code Rep., 118. In another case the summons was served without a copy of the complaint, and without the name of any court appearing thereon. The defendant demanded a copy of the complaint, and one was served entitled "Sup. Court." On motion to set aside the proceedings, it was held that the name of the court sufficiently appeared, and the plaintiff was allowed to amend by entitling the summons and complaint in the "Supreme Court," and the court said it was not analogous to a case where all reference to a court was omitted in the complaint. Walker v. Hubbard, 4 Pr. R., 154. In this last case it must be borne in mind that the place of trial named in the complaint, was not the city of New-York; had it been, the abbreviation "Sup. Court" would have left it doubtful whether the "supreme" or the "superior" court was intended by the contraction "sup;" as the place of trial was out of the city of New-York, the inference naturally was that the supreme court was meant. Where a summons was served which did not mention the name of any court, [and without any copy of the complaint,] and the defendant disregarded it, and the plaintiff took judgment for want of an answer, the court set the judgment aside, and without requiring the defendant to put in an affidavit of merits. James v. Kirkpatrick, 3 Code Rep., 174, 5 Pr. R., 241. And the court further held, that the defendant had not waived the defect in the summons, by laying by and permitting the plaintiff to take judgment, because, until judgment was entered, the defendant was not informed in what court the action was commenced, and could not know in what court he was to move to set the summons aside. Ib. But where, after a summons was served [without any copy of the complaint,] and without naming any court, the defendant gave a general notice of appearance, it was held that he thereby waived the defect in the summons. Dix v. Palmer, 3 Code Rep., 214, 5 Pr. R., 233.

With reference to that portion of the section which requires the summons to be subscribed by the plaintiff or his attorney, it was held that the attorney there mentioned, meant an attorney-at-law, and where the summons was signed by a person not an attorney-at-law with the plaintiff's name, "by I. G. Cramer, agent," the court was of opinion that the requirement of the statute had not been complied with. Weare v. Sloane, 1 Code Rep., 95, 3 Pr. R., 397. But where an infant was plaintiff, and sued by guardian, it was held that the attorney conducting the suit, although not strictly the attorney of the plaintiff, might nevertheless subscribe the summons. Hill v. Thacter, 2 Code Rep., 3, 3 Pr. R., 407.

Where, by setting aside a summons and complaint as irregular, the plaintiff would be barred of his right of action by reason of the statute of limitations, the court, instead of setting the proceeding aside, will permit an amendment to be made on payment of costs. Weare v. Sloane, 1 Code Rep. 95, 3 Pr. R. 397.

Where, after an answer of title in a justice's court, an action for the same cause of action is commenced in the supreme or a county court, the summons should allude to the suit before the justice by some appropriate averment. McNamara v. Bitely, 2 Code Rep., 42, 4 Pr. R., 44. But its omitting to do so is not such an irregularity as will entitle the defendant to move to set it aside.

For the form of the summons when served without any copy of the complaint, see section 130; and when served by publication, see section 135.

§ 129. [108.]-Notice to be inserted in certain actions.The plaintiff shall also insert in the summons a notice, in substance as follows:

1. In an action, arising on contract for the recovery of money only, that he will take judgment for a sum specified therein, if the defendant fail to answer the complaint, in twenty days after the service of the summons.

2. In other actions, that if the defendant shall fail to answer the complaint within twenty days after service of the summons, the plaintiff will apply to the court for the relief demanded in the complaint.

In reference to the provisions of this [129] section it has been held, that a notice in a summons under the first subdivision of this section, that the plaintiff will take judgment for a given sum "with interest" thereon from a specified day, is a sufficient compliance with the provisions here contained, and while the legal rate of interest is seven per cent., that will be the rate assumed where not otherwise specified, and that it leaves nothing to be done but the computation of the legal interest to the day judgment is entered. Swift v. De Witt, 3 Pr. R., 280, 282. 1 Code Rep., 25.

In an action within the 2d subdivision of this section, the complaint named Ulster county as the place of trial, and the summons stated that the plaintiff would apply to the Albany circuit court for the relief demanded in the complaint, it was held, that the summons should have stated that application would be made at the Ulster circuit. Warner v. Kenny, 1 Code Rep., 96. 3 Pr. R., 323-324. The form of summons now generally used merely follows the words of the statute, and gives notice that "the plaintiff will apply to the court for the relief demanded in the complaint," without designating any court or time. The supreme court rules, by rule 91, prescribe that the application for judgment for want of an answer, may be made to any special term in the district embracing the county in which the action is triable, or in an adjoining county, or at a circuit court, in the county in which the action is triable, except that when a reference or writ of inquiry is ordered, it is to be executed in the county in which the action is triable. (See rules in appendix.) Prior to the making this rule it was held, that all applications for judgment for want of an answer must be made in the county named in the complaint as the place of trial. Anon. 1 Code Rep., 82. Warner v. Kenney, ib., 96. 3 Pr. R., 223. Ib., 413.

An action for a breach of promise of marriage is within the class specified in the first subdivision of this section, where the summons is issued in conformity therewith. Such an action is an action arising on contract-of this there can be no doubt. It is also for the recovery of money-no other relief is sought. It does not, therefore, belong to the "other actions" to which the second subdivision of this section applies. It is true that the proceedings upon default provided by the first subdivision of section 246, do not seem entirely appropriate to the nature of an action like this. If the complaint be sworn to, the plaintiff, upon the defendant's failure to answer, becomes absolutely entitled to judgment for the amount of damages claimed. If the complaint be not sworn to, it then becomes the duty of the clerk to ascertain the amount the plaintiff is entitled to recover. Williams v. Miller, 2 Code Rep., 55. 4 Pr. R., 94. Leopold v. Pophenheimer, 1 Code Rep., 39.

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.