(After stating the facts.) It is argued that the plaintiff having issued a summons in the form prescribed in actions brought for a money-demand arising upon contract, and also having attached to the complaint a demand of judgment for a specified sum with interest, it must be presumed that the tort arising from the wrongful conversion of the property referred to, has been waived, and the action is, therefore, to be regarded as resting upon the contract which the law implies in such cases; and as the counter-claim set up arises from a contract also implied by law, growing out of the penalty, *212a debt which the statute imposes upon certain persons who violate the provisions, it therefore falls within subdivision 2, of section 150 of the Code, which permits a counter-claim to be interposed of this character, where it exists at the commencement of the action, and the action arises upon contract, express or implied.
That the counter-claim may properly be said to arise upon contract, I am willing to concede, as whatever the law orders any one to pay, that becomes instantly a debt which he hath beforehand contracted to discharge (3 Blacks. Com., 158), and the claim in the answer thus falls within that class of contracts which are implied by law; but I am not prepared to admit that the cause of action set out in the complaint is one arising on contract; on the contrary, I think it quite obvious, the suit is for a tort committed by the defendant in wrongfully converting to his own use certain property of the plaintiff of the value of $640, for which amount, with interest from the time its return was requested, and which may be considered in the nature of damages claimed, judgment' is demanded. The fact that the summons was not in the form prescribed for actions of this kind, merely shows an error of the attorney in this particular, which might have been taken advantage of before answer by the defendant’s moving to set aside the complaint for the reason that it did not conform to the summons (Tuttle a. Smith, 6 Abbotts' Pr., 329, and cases cited; Davis a. Bates, Ib., 15; Shafer a. Humphreys, 15 How. Pr., 564); but by answering, any variance or defect of this nature is waived, and thereafter it becomes entirely immaterial what the particrdar form of the process was by which the party has been brought into court.
It is, however, insisted, that from the plaintiff’s proceedings, the court should infer that the tort has been waived, and the action would, therefore, be regarded as resting on the implied contract; but, even if this were so, it could not help the defendant, or permit him to assert his counter-claim by way of defence ; the action would still be one arising on a tort, and- not arising on contract, although the plaintiff might have waived any remedy which the law afforded him by reason of the tortious acts of the defendant. The waiver would not alter the facts which constituted the foundation of the action, nor bring the *213suit within the class wherein the Code allows a counter-claim arising upon contract, to be interposed by way of defence. (Piser a. Stearns, 1 Hilt., 86.)
It might have been otherwise under our former system of pleading, when the tort would not only be waived by bringing the action of assumpsit, but the suit in that form would have been subject to all the rules of set-off applicable to actions upon contracts; but I agree with Judge Brady, that under our present system, no such rule of practice or of law exists; and that the character of the proceeding, whether the tort is intended to be waived or not, must now in all cases be determined by the facts set out in the complaint as constituting the cause of action; and if upon those facts it appears that the action did not arise on contract, and that the plaintiff would be entitled to an order for the defendant’s arrest, the suit must be regarded as being founded in tort.
But there is another, and, in my opinion, equally fatal objection to the counter-claim set up, arising from the fact that it did not belong to the defendant at the time of the commencement of the action. As I before remarked, this suit appears to have been commenced in April, and although the judgment had been recovered previously, yet it was not transferred to the defendant until May 3. To permit a claim thus acquired to be interposed as a defence, would be to depart from the general rule by,which actions are determined according to the rights of the parties as they existed at the commencement of the suit; and although the Code (subdivision 2, of section 150) does not say in express terms that the counter-claim must exist in favor of the defendant, and have belonged to him at the commencement of the action, yet I think it should be understood in that sense, as otherwise it would be in effect creating an anomaly in the law, which should not be presumed in the absence of positive language declaring such to be the' intention of the Legislature. (Van Valen a. Lapham, 13 How. Pr., 240 ; Leman a. Trull, Ib., 250; Gage a. Angell, 8 Ib., 335.) This is the rule applicable to set-offs under the Revised Statutes (see 5 ed., vol. 3, 635, § 12, subd. 4), and I think the Code (see 150) should be construed in connection with that provision. (Pattison a. Richards, 22 Barb., 143.)
Order at special term affirmed, with §10 costs.