
    SMITHERON v. OWENS.
    If the suit be in debt and without the actual appea/rance of the defendant, a declaration is filed in assumpsit, and judgment taken by default, it is erroneous, because the suit is changed.
    The service of summons in a case, by the statute places the defendant in court in the suit brought, and if the plaintiff would change his suit, he must begin de novo, or take measures to compel an actual appearance.
    Error to the Common Pleas. Owens sued Smitheron in debt, the writ was served, but no appearance was entered. Owens declared in assumpsit, and took a final judgment for damages in default of a plea.
    
      Strait, for the plaintiff in error,
    cited 1 Sel. Pr. 346.
    
      Storer contra.
   BY THE COURT.

There was no appearance of the defendant below, and the plaintiff proceeded at his peril. It is true, the law ■declares a defendant who is served with process in court, for certain purposes, A plaintiff may prosecute the suit he has brought, to judgment, but he cannot substitute another for it. The judgment is reversed, with costs, and remanded back to be reinstated at the return of the writ, and for further proceedings.

[Summons, how waived; Whitehead v. Post, 3 W. L. M. 195. 200.]  