Waiving the question whether the new execution could be regularly issued without first canceling the satisfaction already entered, let us consider whether the judgment in itself authorized' an execution against the body.' The action was not in form, for a tort. The summons is for money, only. The complaint follows the summons, and asks for money only—the value of the notes taken, The demand made by the plaintiff was not for the notes, but for their value. There is no allegation that the notes were taken illegally, wrongfully or improperly, nor that they had been wrongfully converted or detained. (Code, § 179.) It was not, then, an action for a tort.
But it is claimed that an order of arrest was obtained and issued, and thus the character of the action was fixed. It would be sufficient to say that no such fact appears in the return. But if it were true, it is not claimed that such order was ever served or the defendant arrested. The Code, (§ 288) provides that no execution against the body shall issue “unless an order of arrest has been served,” or unless the complaint contains a statement of facts showing a cause of arrest under section 179. We have seen that neither of these conditions are fulfilled.
The counsel for Benton insists that the right to arrest existed prior to the amendment of section 288 in 1862; that such right became then vested, and that subsequent legislation could not destroy or take it away. But the counsel confuses rights and remedies. . A remedy does not attach to a contract, or a right, but may be repealed or modified. It simply changes the mode in which a contract or a right may be enforced. (Morse v. Goold, 11 N. Y. Rep. 281.)
The final question remains ; was it necessary for Waldron to traverse the sheriff’s return before the proof was admissible to contradict it. The evidence was admitted without objection as to its character. The objection was leveled at the right of-the judge to go back of the execution. No objection was made that no traverse was interposed, and therefore the *622return was conclusive, and could not be contradicted. It was a technical irregularity which could and would have been immediately obviated if the objection had been made. The evir dence was record evidence, and conclusive in its character, The evidence having then been offered and considered by the judge, and his decision rendered thereon without objection, it is now too late for the defendant to raise the objection.
[Broome General Term, July 10, 1866.The order of the county judge of Chenango should he affirmed, with costs.
Farmer, Mason, Falcom and Foard* pum, Justices.]