action, it merely creates a forfeiture of treble damages, where the testimony warrants such damages.

85. (9 Q.) A decision was made at special term in the first judicial district in 1863, that the United States internal revenue act of July 1, 1862, requiring a stamp upon every summons or original proceedings issued by state courts, was unconstitutional. (This decision has not been followed, but has been in effect, overruled. See 86, post.)

86. A summons issued without a United States revenue stamp is irregular and void; and a subsequent affixing a stamp to it will not cure the defect.

87. The act of congress of July 1, 1862, requiring United States revenue stamps to be affixed to original process and proceedings, is no improper interference with the powers of a state court. The court will vacate the proceedings, on the ground that such stamp has not been affixed.

88. Where a copy of a summons, is served without any indication on it of a United States revenue stamp-such stamp being attached to the original summons, the action on motion, will be dismissed for such omission-(overruled, see 89, post.)

89. There is no authority for requiring a copy of a summons, to indicate that the original summons was duly stamped with a United States revenue stamp. The copy is sufficient where there is no indication of such stamp contained on it. (If the original summons is irregular and void, by reason of not having a United States revenue stamp affixed to it (see 84, ante), it would seem to follow that a copy of such a summons is void also. And where the original summons has a stamp affixed to it, it not such a matirial part of the summons that the copy of it omitting the stamp, is materially a defective copy? as it purports to be a copy of a void summons.—ED.)

90. It was decided by a county court in 1865, that a summons issued by a justice of the peace, does not require a United States revenue stamp.

§ 129. 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.

1. Question. Has this section been amended since its passage in 1848 ? Answer. It has, in 1849, which amendment reads as above.

2. Q. How did this section read in 1848?

A. As follows:

108. [1848.] 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.

2. In other actions, that if the defendant fail to answer the complaint, the plaintiff will apply to the court, at a specified time and place (after the expiration of the time for answering), for the relief demanded in the complaint.

Questions.

2. Q. How can a summons issued be amended?

3. Q. What constitutes a sufficient notice under the first subdivision of this section?

4. Q. What actions come within the first supdivision of this section?

5. Q. What actions are classed under the second subdivision of this section?

2. Q. How can a summons issued, be amended?

A. The answer to this question will be found under section 128, Q. 5.

3. Q. What constitutes a sufficient notice under the first subdivision of this section! A. In De Witt agt. Swift, 3 How., 282, Special Term, August, 1848, GRIDLEY, J., it was decided, that a notice in a summons under the first subdivision, that the plaintiff will take judgment for a given sum "with interest" thereon from a specified day, is a sufficient compliance with the provisions contained in this section; and while the legal rate of interest is seven per cent, that will be the rate assumed where not otherwise specified; it leaves nothing to be done but the computation of the legal interest to the day the judgment is entered. The Judge said: It is also objected, that the plaintiffs could not properly take judgment for the sum specified in the summons, with the interest in addition thereto. The summons must, by the 108th section of the Codo, contain a notice that the plaintiff will take judgment for a sum speciñed therein,' and it is said that a notice that the plaintiff will take judgment for a given sum, with interest thereon from a given date, is not in conformity to the act. It is argued that such a construction would involve in some cases a question of law as to the rate of interest, and in others, difficult and complicated questions as to the principles of computation. To this suggestion, it would seem to be a sufficient answer, that while the legal rate of interest is seven per cent, that would be the rate assumed, unless otherwise specified in the summons; and that a notice that judgment will be taken for a given sum, with the interest thereon from a given day, leaves nothing to be done but the simple computation of the legal interest on the sum given, to the day when the judgment is entered. It will be impossible, in the great majority of instances, to specify the amount of the judgment, prospectively, because it cannot be foreseen when the summons and complaint will be served, especially, where the defendants are numerous. Again, it is a familiar principle that whatever may be made certain by computation, is sufficiently certain to satisfy a legal averment. Under the old practice, the clerk must have assessed the damages; but now the party may compute interest for himself. It, however, he makes an erroneous computation, and takes too large a judgment, the defendant has in his own hands the means of correcting the

eiror.

In Ridder agt. Whitlock, 12 How., 208, Special Term, January, 1856, BALCOM, J., it was decided, that the summons must follow one or the other of the forms prescribed; it must indicate the nature of the action-i. e., whether it is one arising on contract for the recovery of money only, or one in which the plaintiff will apply to the court for relief. The Judge said: The motion to dismiss the proceedings in the cause cannot be granted, because it is too broad and comprehensive. The summons cannot be set aside. It is in proper form, and it clearly shows the action is one arising on contract, which fact was not only properly but necessarily stated in the summons (§ 129 of the Code). The motion should have been to set aside the complaint, on the ground that the complaint varies from the cause of action indicated by the summons. Prior to the Code, the true cause of action had to be stated in the ac-etiam part of the capias by which the action was commenced. And in declaring, if the plaintiff did not pursue the cause of action as set forth in the ac-etiam, his declaration and subsequent proceedings only, and not the capias, were set aside for irregularity. (Gra. Pr. 2d ed. 119; Rogers agt. Rogers, 4 J. R. 485; Rousevelt agt. Smith and Vansanteoord, 16 J. R 44; Deife age. Heimstreet, 1 Wend. 305.) In analogy to the practice prior to the Code

The

and by the Code itself, the summons must show whether or not the action arises on contract. The complaint, whether served with the summons or subsequently, must conform to the nature of the action appearing in the summons. It will be presumed, in all cases, that the complaint is drawn subsequent to the making or issuing of the summons. plaintiff should know, before his summons is made out, whether his action arises on contract for the recovery of money only. If he mistakes the nature of his action, he can ask the court for leave to amend his summons, He should not be allowed to make his complaint for a cause of action not indicated by his summons, and then be permitted to say to the defendant, when brought up by a motion for the irregularity, "my complaint is right and my summons is wrong. To hold that the complaint should control the summons, instead of the latter controlling the former, as to the nature of the action brought, would be somewhat like making a judgment conform to the execution issued on it. It would be currus bovem trahit.

In Baxter agt. Arnold, 9 How., 445, Special Term, February, 1854, WELLES, J., it was decided, that where the notice in the summons contained a demand for money against two of the defendants only, and a demand for relief against all of the defendants (there being three), the notice was irregular. This section of the Code contemplates only one notice, or a notice under one of its subdivisions; it cannot follow both. The Judge said: I think the plaintiffs were strictly irregular in the form of the notice contained in the summons. It should have been simply that the plaintiff's would apply to the court for the relief demanded in the complaint. The 129th section of the Code evidently contemplates but one notice, or a notice under one of the subdivisions of the section, and not both. Perhaps the notice that the plaintiffs would take judgment in default of an answer for the sum mentioned might be regarded as surplusage. The defendants, however, in this case cannot be misled, as a copy of the complaint was annexed to the summons, by which they were fully apprized of what they were called upon to answer. If there was an improper joinder of parties or causes of action, or if the prayer for judgment was not adapted to the case made by the complaint, the defendants' remedy was by demurrer or motion to strike ont portions of the complaint. The defendants cannot suffer, therefore, by the variance complained of, and unless compelled by some inflexible rule of practice or provision of the statute to set aside the plaintiffs' proceedings, I shall feel disposed to deny the motions. It has been repeatedly held that an appearance in the action by the defendant was a waiver of the irregularity in the summons. (Die agt. Palmer, 5 How. Pr. R. 233; Webb agt. Mott, 6 id. 439; Hewett agt. Howell, 8 id. 346.) In this case the moving defendants have both appeared.

4. Q. What actions come within the first subdivision of this section?

A. In Dibblee agt. Mason, 1 Code R., 37, Special Term, October, 1848, EDMONDS, J., it was decided, that where in an action for goods sold and delivered, and work done, the summons stated that the plaintiff would apply to the court on a specified day for the relief demanded by the complaint. On motion for judgment for the want of an answer: Held that the summons was in the wrong form, and that the motion for judgment must be denied. The Judge said: This is an action on a contract for goods sold, and work done; the summons does not contain a notice of any specified sum for which judgment would be demanded; but instead, it contains a notice that the plaintiff will apply to the court on a certain day for the relief demanded in the complaint. This, I think, is irregular, and that the motion must be denied and with costs. The irregularity in this sum mons cannot be disregarded under section 145 of the Code, as immaterial, because that section relates to pleading only, and not to process. The court may have power to amend the process, but that can only be done on a motion therefor.

In The Cemetery Board of the Town of Hyde Park avt. Teller and others, 8 Hor., 504, Special Term. December, 1853, BARCULO, J., it was decided, that in an action brought to recover $200, the liquidated damages expressed in a contract to convey lands, the notice in the summons should be made under the first subdivision of this section of the Code. Because the action is on contract for the recovery of money only.

In Croden agt. Drew, 3 Duer, 652, Special Term, April, 1854, BOSWORTH. J., it was decided, that an action" for the recovery of money only, is one in which no relief is sought, except a judgment that the plaintiff recover a sum stated, or to be ascertained, in dollars and cents. When the complaint states a cause of action arising on contract, and prays no relief except for judgment for the recovery of money only, the summons should be in the form prescribed by subdivision 1, of this sertion of the Code. The Code does not require that the contract should be one stipulating by its terms for the payment of money, but only that the action. should be one arising on contract, and that only money should be sought to be recovered. The Judge said: This is an action arising on contract. It is an action to recover money only. No judgment is prayed, except for the recovery of two sums, one of $1,000 and one of $300, and interest. No relief beyond that is sought. A breach of the contract is stated as the ground of recovery. The contract is not one by which the defendant promises to pay money. He does not promise to pay money in any event, and full performance of it would not require the payment of any. Still it is an action arising ex contractu, or on contract. The Code does not require that the contract should be one stipulating by its terms for the payment of money, but only

that the action should be one arising on conctract, and that only money should be sought to be recovered. The theory of the complaint is, that by reason of the contract, and the breach of it, the defendant is liable to pay, and the plaintiff is entitled to demand, the two sums of $1,000 and $300. If this be the correct view of the action, and of what is sought to be recovered in it, the Code is imperative that the clerk shall ascertain and assess the damages (§ 246, sub. 1). That subdivision contemplates that the clerk shall assess damages in other cases than on an instrument for the payment of money only. This is an action for the recovery of money only,' within the meaning of those words (as used in § 304. sub. 4, and § 53, sub. 1, § 310, § 227 and § 253.) This case is disting uishable from West agt. Brewster, 1 Duer, S. C. R. p. 647. In the latter case there was a prayer for a judgment that the defendant account, and if such a judgment may be had under the Code, then the action was for something besides the recovery of money only, notwithstanding that only was the ultimate result sought to be secured. In West agt. Brewster, as the complaint was framed, the costs would probably be in the discretion of the court (Code, §§ 304. 305, 306), and the action would be triable by the court (§§ 253, 254). This action, if put at issue, would necessarily be triable by a jury, unless such a trial was waived, or the action was referred. I think the form of the summons erroneous. If correct in this view, this is an action in which the Code requires that the damages, if any assessment was necessary, should have been assessed by the clerk, and it was irregular to enter a judgment otherwise than as authorized by the Code. Still I think there are plausible grounds for construing subdivision 1 of section 129, to mean by 'contract,' as there used, a contract by which a party promises to pay money, and to refer to actions brought to recover only the money so promised to be paid. The contract need not specify the sum to be paid. nor be written. It would, thus construed, include the class of actions heretofore brought upon a quantum meruit, for goods sold, services performed, and all other contracts by which a party is bound to pay a certain sum, or what the law on the facts proved deems to be reasonable. Even the latter construction would give the clerk the power to assess damages in a much larger class of cases, than was allowable by the pre-existing laws. (2 R. S. 356, § 2; Code, § 246, sub. 1). But the language of the Code seems too explicit to justify such a construction as last suggested. The plaintiff's procedings were therefore irregular.

In Tuttle agt. Smith, 14 How., 398, General Term. April, 1857, EMOTT, J., it was decided, that the phrase "for the recovery of money only," used in subdivision 1 of this sec‐ tion of the Code, must be construed to mean the recovery of a definite sum of money as such, and without calling upon the court to ascertam or adjudge any thing but the exist ence and terms of the contract by which it is due. Whenever the action requires the determination of amounts unliquidated in their nature, requiring other proof, and depending upon other considerations than such as appear in the contract itself, then the action is not for the recovery of money only, as money due and payble by the contract on which the action arises. It is rather an action to establish and ascertain the plaintiff's rights to damages which are to be paid and satisfied in money. The Judge said: Further reflection has only induced me to adhere to the opinion expressed at special term, and upon which this motion was decided, that in an action for the recovery of damages occasioned by the breach of a contract, and which are unliquidated in their amount, the contract itself being not for the payment of money only, but for the performance of various other acts, with or without such payment, the summons should be in the form given by subdivision 2, of section 129 of the Code, and contain a notice of application to the court. This question was presented to the court very soon after the adoption of the Code. In Dibblee agt. Mason, (1 Code R. 37), Judge EDMONDS held, that in an action for goods sold and work and labor done, the summons must give notice that the plaintiff, in default of an answer, would take judgment for a sum certain. This case has been referred to in subsequent decisions upon the present question, but its bearing is somewhat remote. The action for the price of goods and the price or value of labor, is directly, in form and principle, upon a contract either express or implied, by which the defendant is bound to pay for the goods or the labor, their price or value--a sum certain by the agreement, or capable of being reduced to certainty by mere calculation from the elements which the agreement contains. The action is therefore on the contract, and brought for its performance by the payment of a sum of money, which, by its terms, is required of the defendant. Such a case obviously fulfils the requirements of the definition in the first subdivision of this section of the Code. It is clearly an action arising on contract for the recovery of money. There would be nothing for the court to do upon an application for judgment, but to order judgment for the amount which the defendant was bound to pay by the terms of his agreement. In Leopold agt. Poppenheimer, (1 Code Rep. 39), Judge ULSHEFFER, of the cominon pleas, held that in an action for damages for the breach of a promise to marry, the summons should give notice, that if the defendant failed to answer, the plaintiff would take judgment for a specified sum. His observations on this part of the case are very brief, and are not, I am obliged to say, satisfactory to my mind. In Williams agt. Miller. (4 How. Pr. Rep. 94), Mr. Justice HARRIS made a similar decision. But in Flynn agt. Hudson River Railroad Co., (6 id. 308). that learned judge says, that he never felt satisfied with those decisions, and should not regret to see them exam

ined and disapproved. In the latter case (6 How. 308), it was held that, in an action against a common carrier of passengers for the value of the baggage of a person carried by them, founded on their common law liability, and not alleging any negligence, the summions should contain notice of an application for relief. It is true, this decision was put on the ground that the action against a carrier savored of tort, and was founded, in part at least, on negligence presumed or proved. But, as I read the report of that case, no negligence was averred, and, with defference to the experienced judge who decided it, the decision can be sustained, and I think satisfactorily, on other grounds. It may be mentioned here, that the court of appeals, in Campbell agt. Perkins, (4 Seld, 436), have held, that a claim against a carrier for goods lost by him, was a claim arising on contract so as to be barred by a bankrupt discharge, although asserted in an action on the case. apprehend the learned judge felt embarrassed by the cases of Williams agt. Miller, and Leopold agt. Poppenheimer, which, while he felt dissatisfied with, he did not feel authorized to overruled or expressly depart from. The case of Clor agt. Mallory, (1 Code Rep. 120), which Judge HARRIS follows in the opinion I have just mentioned, was, in its circumstances, very similar to the one then before him. But I do not understand it to have been decided altogether upon the same grounds on which he places his opinion in that case. I think that case goes further. In Clor agt. Mallory the complaint set out that the defendants received and undertook and agreed to transport certain goods from New York to Buffalo for certain reward, and that they failed to deliver the property. The summons was in the form required by subdivision 1 of the section of the Code which we are considering, and upon receiving no answer the plaintiff took judgment for the sum indicated in his summons. This judgment was set aside as irregular, and the form of the summons was held to be wrong. Judge JOHNSON, in a well considered opinion, points out the hardship that would result from the construction contended for by the plaintiff's in that case, as in the present. In addition to the forcible reasons which his opinion contains, it may be suggested that cases might occur where grievous injustice would be done by such a practice. Take the case of an action by a female for the breach of a promise of marriage, where the excited feelings or fancy of the plaintiff' would induce her not only to state, but to swear to almost any amount of damages. This has been held, and if I am wrong in this construction I have adopted, it undoubtedly is one of the class described in this section as "actions on contract for the recovery of money only," and the plaintiff may therefore give notice in the summons, that if no answer is put in, she will take judgement for the amount claimed as damages in the complaint. Now, if the complaint be verified, and it be true that there was a contract and a breach, and the defendant be too conscientious to deny it under oath, what is he to do? Is it not very doubtful whether a mere denial of the allegation that the plaintiff is damaged five or ten thousand dollars, as the case may be, would be good pleading, or would form any issue. And if such an answer were struck out, or if the defendant wished to be spared the expense and the exposure of a defense and a trial and therefore made default, the plaintiff must have judgment for the whole amount of damages she claims, without the defendant ever having been allowed any opportunity to try the question of damages in any way. A construction of the Code which would lead to such consequences, if it be according to its letter, cannot be in accordance with its spirit, if its design and effect be what its admirrers claim. Judge JoHNSON discriminates between actions upon contracts for the payment of money on their face, and another large class of actions for the recovery of damages, merely on account of the non-performance of some stipulation or duty other than the payment of a sum of money, although money only was sought to be recovered as damages. And he says the latter class fall properly under the second subdivision of section 129, where proof of the facts is necessary to enable the court to give judgment. I think this is the proper distinction, and it is sanctioned by the opinion of the late Justice BARCULO, in The Cemetery Board of Hyde Park agt. Teller, (8 How. 504). That case was the converse of the present. The action was for damages for the breach of a contract to convey lands, bnt the damages were liquidated by the contract, and therefore the contract was, in effect, for the payment of the liquidated amount in case of a breach. It was held, therefore, to fall properly under the first subdivision of the section. This was all which was involved in the decision; but the learned judge expresses an emphatic opinion that the second subdivision can only be applied to contracts which, in terms, provide for the payment of money. The same view seems to be taken by the superior court. In West agt. Brewster, (1 Duer, 649), Judge OAKLEY decided, after consultation with all his associates, that in an action against an attorney for an account and payment of moneys collected by him, the summons should conform to the second subdivision of the section. The chief justice says, the first subdivision, which we are considering. refers to actions at law in which, from the nature of the contract, the plaintiff knows and can specify the sum he is entitled to recover. The phrase "for the recovery of money only," ought not to be considered as marking a class of cases which are distinguished only from actions brought to compel the performance of some specific act or thing, and terminating there. Such a classification evidently would be insufficient. There are many cases where specific relief is to be administered, and yet the ultimate object of the suit is the recovery of money. Such are foreclosure suits, and