60. New action in supreme court; pleadings therein.

61. Costs of action in supreme court.

62. Proceedings where several causes of action, and answer of title as to

7. Proceedings in demurrer.

8. Plaintiff to prove his case, if defendant do not appear.

9. Proceedings in action on account or instrument for the payment of money

only.

10. Variance, when disregarded.

11. Amending pleadings.

12. Execution, when issuable and returnable.

13. Execution on justices' judgment docketed.

14. Requiring party to exhibit, his account.

15. Certain provisions applicable to these courts.

§ 52. Repeal of certain existing provisions.

The provisions contained in sections two, three and four of the article of the Revised Statutes, entitled "of the jurisdiction of justices' courts," as amended by sections one and two of the act concerning justices' courts, passed May 14, 1840, and the provisions contained in sections 59 to 66, of the same article, both inclusive, are repealed, and the provisions of this title substituted in place thereof. But this repeal shall not affect any action heretofore commenced in a court of a justice of the peace.

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

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

A. As follows:

$ 45. [1848.] The provisions contained in sections two, three and four of the article of the Revised Statutes, entitled "of the jurisdiction of justices' courts," as amended by sections one and two of the act concerning justices' courts, passed May 14, 1840, and the provisions contained in sections 59 to 66, of the same article, both inclusive, are repealed, and the provisions of this title substituted in place thereof. But this repeal shall not affect any action heretofore commenced, in a court of a justice of the peace.

Questions.

3. Q. What are the general powers of justices of the peace under the Revised Statutes which are not repealed by the Code?

4. Q. Can a justice of the peace delegate any part of his official power to another?

5. Q. Can a justice of the peace sit in a case in which he is a party?

6. Q. What are the provisions of the statute for commencing suits in justices' courts?

7. Q. Can a railroad corporation be sued in a justice's court by a short summons ?

8. Q. Does a justice of the peace acquire jurisdiction of a non-resident defendant where he is served with long summons?

9. Q. What is required to be the contents of a summons from a justice's court?

10. Q. What is the manner of service of a summms from a justice's court and a proper return thereon?

11. Q. How are suits commenced in justices' courts against joint debtors?

12. Q. What authority have justices of the peace to allow amendments?

13. Q. What is the form of a summons in a justice's court?

14. Q. What is an appearance and its effects in a justice's court?

15. Q. What are the fees of justices of the peace as regulated by the statute of 1866?

16. Q. What powers and proceedings before justices' are provided by the statute of 1862? 17. Q. In what cases are justices of the peace authorized to act as coroners?

18. Q. Must an affidavit be presented and a bond with surety be given in order to autho rice a justice of the peace to issue an attachment under the act to abolish imprisonment for

debt?

19. Q. What are the requisites of an affidavit to authorize the issuing of an attachment in a justic's court?

20. Q. What amounts to a waiver in a justice's court?

21. Q. What kind of security is required before an attachment can issue by a justice of the peace?

22. Q. When should an attachment be returnable in a justice's court?

23. Q. What has been decided as to priority of liens of attachments issued by a justice of the peace!

24. Q. Upon an appeal being taken must the attached property be released?

25. Q. What is and is not a sufficient return of an attachment issued out of a justice's court?

26. Q. What is necessary to authorize a justice to issue a warrant ?

27. Q. What is a sufficient indorsement upon process for the recovery of a penalty?

3. Q. What are the general powers of justices of the peace under the Revised Statutes which are not repealed by the Code?

A.

Every justice of the peace elected in any town of this state or appointed for any

city in which special courts are not established by law, is hereby authorized to hold a court for the trial of all actions in the next section enumerated (which is repealed by the Code and the actions in this title, § 53, substituted), and to hear, try and determine the same according to law and equity, and for that purpose where no special provision is otherwise made by law, such court shall be vested with all the necessary powers which are possessed by courts of record in this state." (2 R. S. 4th ed. 428 § 1.) Every such action shall be brought before some justice of the town wherein either 1, the plaintiff's or any one of them reside, or 2d, where the defendants or any one of them reside, or 3d, before some justice of another town in the same county next adjoining the residence of the plaintiff or defendant." (Id. § 6.)

In Cooper agt. Ball, 14 How., 295, Special Term, February, 1857, GOULD, J., it was decided, that a justice of the peace has not, by statute, jurisdiction by long summons over all persons residing in his county; but only over those who reside in his own town or adjoining town; or where the plaintiff or defendant resides in the same town with the justice, or in an adjoining town. Where such jurisdiction is not obtained the justice has no right to try the cause, and the defendant is not bound to appear and object to the jurisdiction by plea in abatement; nor is the error waived by his omission to do so.

In Foster agt. Hazen, 12 Barb., 550, General Term, September, 1850, WELLES, J., it was decided, that no presumption will be indulged in order to oust a justice of the peace of jurisdiction, where enough is shown to bring the case within the general language of the statute which confers the jurisdiction. The eighth section of the statute (2 R. S., 226,) which contains a limitation of the general jurisdiction conferred by the first section (id. 225) is in the nature of an exception in a statute; to obtain the benefit of which it must be pleaded by the party seeking to bring himself within its provisions.

In Barnes agt. Harris, 4 Comst., 374, December, 1850, GARDINER, J., it was decided, that the mere request of the plaintiff for a summons is equivalent to a plaint levied, which, according to the old law, was all that was required to give jurisdiction of the person of the defendant. The authority, therefore, of a justice of the peace to issue a long summons on the request of the plaintiff, is as ample as to issue a warrent or attachment upon a special application and proof required by law. A person having no legal residence any where, it seems, may be sued by long summons. That process is appropriate unless the defendant is a non-resident of the county.

In Tiffany agt. Gilbert, 4 Barb., 320, General Term, November, 1848, GRIDLEY, J., it was decided, that where a judgment is rendered by a justice of the peace, not residing in the same town with either of the parties, nor in an adjoining town, in violation of the statute, and there has been no waiver of the error by an appearance, and an omission of the defendant to take the objection, before the justice, a certiorari will lie to reverse such judgment, upon error of fact. In such a case the justice has no right to try the cause; and the defendant is not bound to appear and object to the jurisdiction by plea in abatement, nor is the error waived by his omission to do so.

In Holmes agt. Carley, 32 Barb., 441, General Term, May, 1860. PARKER, J., it was decided, that where towns corner together, although they do not touch each other at any other point, except the corners, they are to be deemed adjoining towns, within the meaning of the statute (2 R. S. 226, sub. 3, § 8) authorizing actions to be brought before a justice of the peace of another town, in the same county, "next adjoining" the residence of the plaintiff or defendant.

In 2 Revised Statutes, 4 ed., 428, § 7, it is enacted that if a defendant has absconded from his residence, such action may be brought before a justice of the town in which such defendant or his property may be; and if the plaintiffs be all non-residents of the county; or if the defendant be a non-resident of the county, then such action may be brought before any justice of the town in which such plaintiff or defendant may be. 4. Q. Can a justice of the peace delegate any part of his official power to another? A. In The People agt. Smith, 20 John., 63, General Term, May, 1822, PLATT, J., it was decided, that if a justice delivers to a party a summons signed by him, in blank, to be filled up with the names of the parties, cause of action, &c., in his presence and under his control, is not a violation of the statute. But if the party receiving a blank summons, fills it up out of the presence of the justice, though before it is delivered to a constable to be served, it would be a violation of the statute, passed April 7, 1820. (S. L., 43, ch. 159.)

In Borrodaile agt. Leak, 9 Barb., 614, General Term, Supreme Court, September, 1850, WELLES, J., it was decided, that a justice of the peace cannot delegate any part of his official power or authority to another. But it seems that he may depute another to do a specific act without vesting in him any discretion. Whether he can so depute a clerk to issue a summons as to divest the clerk of any exercise of discretion in the performance of the act. Quere (?).

5. Q. Can a justice of the peace sit in a case in which he is a party?

A. In Baldwin agt. McArthur, 17 Barb., 414, General Term, January, 1854, C. L. ALLEN, J., it was decided, that, by the act containing general provisions concerning courts of justices (2 R. S., 275, § 2), it is declared that no judge of any court can sit, as

such, in any cause to which he is a party, or in which he is interested, or in which he would be excluded from being a juror by reason of consanguinity or affinity to either of the parties. Consequently, where one of the parties to an action to recover for the support of a county pauper, was one of the superintendents of the poor and also a justice of the sessions which granted the order of maintenance, upon which order the action was bronght, rendered the order invalid.

In Place agt. Butternuts Woolen and Cotton Manufacturing Co., 28 Barb., 503, General Term, May, 1857, MASON, J., it was decided that a stockholder in a corporation is a party to a suit brought against such corporation; that a judge or a justice of the peace cannot sit as such, in a cause to which a corporation is a party, if he be related to a stockholder in such corporation; and the defendant may prove the existence of such relationship, although there is no plea to the jurisdiction of the justice, or answer setting up the fact to be proved, in order to deprive the justice of jurisdiction. A nominal party to a cause comes within the prohibition of the statute equally with a party in interest.

In Carrington agt. Andrews, 12 Abb., 348, County Court, September, 1861, GLEASON, J., it was decided that the provision of the laws of 1847, page 319, chapter 280, section 81, declaring that no judge of any court shall have a voice in the decision of any cause in which he has been counsel, attorney or solicitor, or in the subject matter of which he is interested," applies to justices of the peace. And where the justice who rendered the judgment had been counsel for the plaintiff, in a suit before another justice for the same matters declared for before himself, and, on application, refused to dismiss the action, held that the judgment should be reversed.

In Schoonmaker agt. Clearwater, 41 Barb., 200, General Term, September, 1863, MILLER, J., it was decided that a judgment rendered by a justice of the peace who is related to either of the parties is absolutely void. The statute having declared that no judge of any court "ean sit" in such a case, all the acts of the justice are coram non judice, and of no effect whatever; and this though no objection was made to the exercise of jurisdiction at the trial, and no proceedings have been had to set aside or vacate the judgment. In Montgomery County Bank agt. Marsh, 3 Seld., 481, December, 1852, JEWETT. J., it was decided that a stockholder of a corporation is a competent witness for it in an action where he is not named as a party.

In Bank of Lansingburgh agt. McKie, 7 How., 360, Special Term, December, 1852, HARRIS, J., it was decided that a stockholder in a bank is not a party for whose immediate benefit the action is prosecuted or defended; consequently a stockholder may be a legal witness for a bank.

6. Q. What are the provisions of the statute for commencing suits in justices' courts? 4. Suits may be instituted before a justice, either by the voluntary appearance and agreement of the parties, or by process; when by process, it shall be either a summons, a warrant, or an attachment" (2 R. S. 4th ed. 428, § 9).. Suits shall be considered as commenced at the times following: 1. Upon process by warrant, at the time of the arrest of the defendant. 2. Upon process by attachment or summons, on the day when the process shall be delivered to the constable; but if two or more suits be commenced by summons or attachment on the same day, the suit in which the process was first served shall be deemed to have been first commenced. 3. When the suit is instituted without process, at the time of the parties joining issue" (Id. § 10). "The first process against freeholders, and against inhabitants having families, except as is otherwise hereinafter directed, shall be a summons; but no person shall be proceeded against by summous out of the county in which he resides" (Id. § 11).

In Barnes agt. Harris, 4 Comst., 376, December, 1850, GARDINER, J., it was decided that a summons is the ordinary process of a justice's court, and issues on the mere suggestion of the plaintiff; but the process of warrant or attachment is extraordinary, and can issue only on a special application, and upon proof required by law. The authority of a justice of the peace to issue a long summons, on the request of the plaintiff, is as ample as to issue a warrant or attachment upon a special application and proof required by law. A person having no legal residence anywhere may be sued by long summons; that process is appropriate unless the defendant is a non-resident of the county. Where a court has authority to issue process, it acquires jurisdiction of the person of the defendant prima facie, by a personal service of that process upon him in the manner required by law.

In Allen agt. Stone, 6 Barb., 62, General Term, May, 1850, CADY, J., it was decided, that it is a general rule, that the time for the appearance of a defendant served with a summons issued by a justice of the peace, shall not be less than six nor more than twelve days, and that the summons shall be served at least six days before the time of appearance mentioned therein. This rule is prima facie applicable to all cases, unless the party can show to the justice such facts as will authorize a summons of a different character to be issued. Where the return of a justice to a certiorari, shows no fact authorizing him to issue a summons returnable in two days, it will be held prima facie that a summons thus issued was without authority. It cannot be inferred that the defendant was a nonresident of the county, where there is no fact stated in the return to warrant that supposition. Where the defendant is a nonresident of the county, and the plaintiff is also a

JUSTICES' COURTS.

[$ 52.

nonresident, he is not entitled to a short summons, without proof of that fact, and giving the security required in such case.

In Waters agt. Whitamore, 13 Barb., 635, General Term, September, 1852, CRIPPEN, J., and in same case General Term, September, 1855, 22 Barb., 593, MASON, J., it was decided, that section 19 of title 4 of the Revised Statutes relating to justices' courts, is still in force, notwithstanding the 43d section of the nonimprisonment act of 1831. Hence, in order to obtain a summons returnable in two days, under section 33 of the nonimpris onment act, the justice must be furnished with the same proof of the nonresidence of the defendant as was required by the provisions of the Revised Statutes to authorize the issuing of a warrant against such defendant, and in addition thereto the affidavit of the applicant for such summons should state that the cause of action is founded upon a claim arising on a contract, according to the provisions of section 31 of said act. Until such proof is made, the issuing of a short summons is wholly unauthorized, and the justice will acquire no jurisdiction of the case. attorney, to recover back money which it is claimed he has illegally taken is not an action An action brought in a justice's court against an for money due upon a contract, express or implied. within the meaning of the first section of the act of 1831, consequently that act does not apply to such an action, and a justice of the peace has no jurisdiction to issue a short summons, against a defendant residing out of the county. But if such an action were to be regarded as based upon an implied promise, it is exempted from the operation of the provisions of the act 1831, allowing a short summons by sections 2 and 30 of that act on the ground that an attorney is a public officer, and the action is founded on official misconduct. A short summons cannot be issued, in any case against a defendant who is a nonresident of the county except when the plaintiff's demand arises on contract express or implied.

In Robinson agt. West, 11 Barb., 310, General Term, June, 1851, MITCHELL, J., it was decided, that a justice's court, nor the marine court do not acquire jurisdiction of a cause where the defendant being a nonresident, is sued by a summons, returnable more than four days after its date, or served more than two days before the return day; and even if the defendant, when brought before the court by such illegal process, should ask for and obtain an adjournment, and under force of that process, plead to the action, it will not authorize the entry of judgment against him. It seems, that where the statute declares expressly, that a justice shall have no jurisdiction of the cause, if the defendant be not proceeded against as the law prescribes, this strips the justice of all official authority, and he possesses no more power to accept a waiver, and thus acquire jurisdiction, than a private individual would have.

In Van Kirk agt Wilds, 11 Barb., 524, General Term, September, 1851, HARRIS, J., it was decided, that upon an application to a justice of the peace, for an attachment against the defendant, there must be an affidavit proving the grounds on which the application is founded in all cases, not excepting that of a nonresident. If an affidavit states that the plaintiff has a debt against the defendant, to a specified amount, arising upon contract, and that the defendant is a nonresident of the county, it is enough to warrant the justice in issuing an attachment.

7. Q. Can a railroad corporation be sued in a justice's court by short summons?

A. In Johnson agt. Cayuga and Susquehanna Railroad Co., 11 Barb., 623, General Term, May, 1852, SILANKLAND, J., it was decided, that a railroad company may properly be sued in a justice's court, by long summons. In cases of corporations no provision is

made by statute for process by warrant, or attachment or short summons.

In Sherwood agt. Saratoga and Washington Railroad Co., 15 Barb., 650, General Term, July, 1852, WILLARD, J., it was decided, that a railroad corporation, whose road passes through two or more counties, may be sued before a justice of the peace in either county, provided the process can be served on the proper officer in such county. A railroad company must be treated as an inhabitant and freeholder in each county where its track is laid. Therefore, a summons issued against such a company, by a justice of the peace, must be made returnable not less than six nor more than twelve days from the time of service. A summons returnable within three days from its date is à nullity. The justice has no jurisdiction over the corporation, as a nonresident.

a

In Belden agt. N. Y. and Harlem Railroad Co., 15 How., 17, General Term, April, 1857. BIRDSEYE, J., it was decided, that a railroad company cannot be sued before a justice of the peace of a town through which their railroad passes, by a short summons. They are to be treated as inhabitants and freeholders in each county where their track is laid, consequently entitled to the privilege of a long summons. waive this objection by appearing and pleading after the objection is overruled.' And they do not

Q. Does a justice of the peace acquire jurisdiction of a nonresident defendant where he is served with long summons?

A. In Willins agt. Wheeler, 17 How., 93, General Term, February, 1859, EMOTT, J., it was decided, that by the issuing of a long summons by a justice of the peace, and its service and return on a nonresident defendant, the justice acquires no jurisdiction over the person of the defendant, and a judgment rendered upon service of such process is wid. Such a fatal defect in jurisdiction cannot be cured by a mere omission to take the