ant, and that the plaintiff might discontinue as to the other defendants and recover against him. 83. Q. Can a judgment of a justice of the peace, where he has jurisdiction, be attacked collaterally? A. In Wesson agt. Chamberlain, 3 Comst., 331, April, 1850, HurLBUT, J.; Bromley agt. Smith, 2 Hill, 517, General Term, May, 1842, NELSON, J.; Hoose agt. Sherrill, 16 Wend., 35, General Term, October, 1836, NELSON, J.; and in Skinninn agt. Kelly, 18′ N. Y. R., 355, December, 1858, JOHNSON, J.; it was decided that, where a justice of the peace has jurisdiction of the subject matter of a suit before him and of the person of the defendant, his judgment cannot be attacked collaterally. Where the defect goes only to the regularity of the process, and not to the jurisdiction of the justice, although it may be an error which would justify a reversal of the judgment, it does not render the process a nullity. Where a justice of the peace acquires jurisdiction of an action, his judg ment, although it be voidable for irregularities thereafter committed, is not void, and will uphold a judgment given upon it in a suit commenced thereon. (See also Groff agt. Griswold, 1 Denio, 435; Humphrey agt. Persons, 23 Barb., 314.) 84. Q. Can payment or tender of a judgment be made to the justice who rendered it? A. In Dexter agt Broat, 16 Barb., 340, General Term, July, 1853, GRIDLEY, J., it was decided that a defendant has a right to tender the amount of the judgment, and relieve himself from the judgment, and to prevent the issuing of an execution, as soon as it is recovered. The plaintiff does not know the amount of the costs, and may not know or remember the amount of the damages, and the defendant must of necessity tender and pay to the justice. Should he make the tender to the party himself, the plaintiff would refer him to the justice, just as a party would refer a defendant to his attorney who had the demand in charge. The fact that the justice has to issue execution, and the constable is bound to return it to him, is also conclusive as to the right of the justice to receive the amount of the judgment in satisfaction. Therefore, payment or tender of a judgment, the judgment creditor not forbidding, may be made to the justice. 85. Q. Does a mandamus lie to compel the issuing of an execution from a justice's court? 4. In The People agt. The Clerk of the New York Marine Court, 3 Abb., 309, Court of Appeals, October, 1856, MITCHELL, J., it was decided that a mandamus is allowable whenever a party has a legal right, and is entitled to a specific remedy to enforce it, and a public officer, whose duty it is to afford that remedy, refuses to afford it. Therefore, a mandamus lies to compel the issuing of an execution from a justice's court. 80. Q. Can the application for an attachment against a witness for non-attendance, be based on an oral oath, without writing? A. In Baker agt. Williams, 12 Barb., 527, General Term, September, 1859, WELLES. J., ît was decided that the affidavit which a party may make, in order to obtain an attachment against a witness for non-attendance before a justice of the peace, need not be an oath in writing, according to the strict and technical sense of that word. The application for the attachment, and the oath in support of it, may be oral. 87. Q. Is a seal necessary to a warrant issued by a justice of the peace, under the statute relative to bastardy? A. In Millett agt. Baker, 42 Barb., 215, General Term, June, 1864, FOSTER, J., it was decided that, at common law, a seal was not necessary to a warrant issued by a justice of the peace, and is only made so, even in criminal cases, when specifically required by the statute; and there is no settled rule in this state, either judicial or legislative, to the contrary. Proceedings under the statute respecting bastardy are not proceedings in criminal cases. Therefore, a warrant issued by a justice of the peace for the arrest of a putative father, under the statute relative to bastardy, which statute directs the justice to issue his warrant directed to any constable," &c., but does not specify whether it shall be uuder seal or not, is valid without seal. 88. Q. When will a justice's return be refused to be set aside, and an amended return ordered? A. In Smith agt. Johnston, 30 How., 374, General Term, July, 1865, PARKER, J, it was decided that the return of a justice of the peace will not be set aside on the ground that it is incorrect or untrue, or defective in its statements, or that it contains immaterial matters; nor will it be set aside on the ground that it was drawn up by the attorney for the defendant in error, where it was afterwards "corrected, altered and fixed" by the jus tice, unless abuse is clearly shown; but an amended return will be ordered, requiring the justice to answer specific interrogatories in regard to any matters material to the case, upon proper application. A party may compel the return of evidence stricken out in the court below, for the purpose of bringing more distinctly before the appellate court the points on which he relies for a reversal of the decision. 89. Q. What is the effect of a dismissal of an action by a justice against the remonstrance of the plaintiff? A. In Lord agt. Ostrander, 43 Barb., 337, General Term, October, 1864, MORGAN, J., it was decided that the erroneous dismissal of a suit by a justice of the peace, against the remonstrance of the plaintiff, puts an end to it as effectually as though it was dismissed upon the plaintiff's motion. An appeal from the judgment of dismissal will not restore the action, so as to allow the plaintiff to interpose its pendency as a bar to a suit subsequently commenced by the defendant to recover a demand which he was required to avail himself of as a set-off against the demand of the plaintiff before the justice Where, however, the county court, upon a reversal of the judgment, may award a new trial, either before the justice or in the county court, the suit, it seems, is not determined pending an appeal to the county eourt as to any matter in issue, or which is required to be put in issue, in such action. What is the result of the decisions under this section? 1. (3 Q.) A reply is not necessary nor admissible in a justice's court in any case. New matter in an answer must be deemed to be controverted by the plaintiff. 2. (4 Q.) A new assignment, is not allowable under the Code, in a justice's court. 3. (5 Q.) The statute requiring a justice to certify in his docket the amounts appearing to be due on the judgments therein, or to deposit his docket with the clerk of the town, on his removing therefrom is directory merely. 4. A memorandum of the justice of his decision made in a cause within four days, after its submission to him, renders his judgment regular, though he did not make the entry in his docket until after the lapse of the four days. 5. The statute requiring a justice to enter in his docket a minute of a conviction, in cases of fine imposed by him is directory merely, and his omission to make it does not invalidate the conviction. 6. (6 Q.) Pleadings in justices' courts are not required to be verified. 7. (7 Q.) The complaint in a justice's court need not correspond with the summons; if it is in a civil action it is sufficient. 8. (8 Q.) It is not necessary to separate causes of action from each other by different counts, in a complaint in a justice's court. 9. (9 Q.) If a defendant can, in answer to the complaint in a justice's court, set up title, but omits to do it, the justice retains his jurisdiction, and the defendant cannot raise that question on the trial. 10. A justice is not ousted of his jurisdiction, where title is not pleaded, because it may be necessary for the plaintiff to prove title to sustain his action, if the defendant does not dispute it. 11. (10 Q.) A justice had no jurisdiction of an action for taking, detaining or injuring personal property, before the amendment of section 53, in 1862, where the complaint claimed judgment for $200, although the claim as alleged, was a clerical error. 12. A complaint in a justice's court, for taking and converting personal property, which would have been bad on demurrer for not alleging that the plaintiff owned the property, was held good, where the objection was not made before the justice. 13. (11 Q.) The plaintiff may recover in either form of action, upon a complaint in a justice's court, which contains a misjoinder of actions-assumpsit and tort, where no objection is made to such misjoinder. Pleadings in justices' courts are to be treated with great liberality. 14. A misjoinder of actions in a justice's court, is not authorized any more than in any other court; but when made the remedy is to require the plaintiff, on joining issue, to elect to which he will be confined. 15. (12 Q.) A judgment in a justice's court for less than $100, damages is valid, although the complaint claimed damages for $100, and over. The words "and over" being void for uncertainty. 16. (13 Q.) In an action in a justice's court, upon a sealed instrument, it is not necessary to state that the instrument is under seal. The contract may be set forth according to its legal effect. 17. (14 Q.) A denial of knowledge sufficient to form a belief, does not apply to justice's courts a general denial only is provided for. 18. The provision as to admissions of allegations in the complaint for want of a denial in the answer, applies to justices' courts. 19. It is no objection to an answer in a justice's court that it contains matter in abatement, with matter in bar. 20. If a defendant in a justice's court join issue on the merits, after his demurrer is overruled he thereby waives the demurrer. 21. Whether a supplemental answer can be allowed in a justice's court-doubtful. 22. The objection that a justice's court has not jurisdiction of the person, is not waived by an answer omitting to raise it. 23. Appearing on the return day and pleading to the merits in a justice's court, waives a defect in the process. 24. Appearing and going to trial on the merits on the return day in a justice's court, waives an error of the justice in holding the cause open until the return day of an attachment. 25. (15 Q.) An amendment is allowable in a justice's court, by adding a plea after issue joined, upon terms. 26. A justice's court may allow a plaintiff to add a new count to his complaint after adjournment. 27. An application to amend a pleading is addressed to the discretion of the justice, and though a justice's court has power to allow amendments, error will not lie from a decision refusing such application. 28. A rarionce, in a complaint in a justice's court, between an agreement declared on as not under seal and its production in evidence under seal, is amendable, and may be disregarded. 29. Where the complaint claims damages to an amount beyond the jurisdiction of the justice, the plaintiff may amend, on the adjourned day, so as to bring the case within his jurisdiction. 30. A justice of the peace cannot volunteer and make amendments to pleadings not moved for. 31. It is the duty of a justice's court to order a pleading to be amended, where it has been overruled as insufficiently pleaded. 32. A justice, after having permitted a defendant to present his defense, should allow him to make his pleading more specific and certain, when necessary. 33. Where a justice, at the commencement of the trial, decides a previous motion made by defendant, and dismisses the complaint, because it does not contain facts sufficient to constitute a cause of action, without giving the plaintiff liberty to amend, it is error. 34. If a justice deems a demurrer to a pleading well founded, he is bound to order the pleading amended. If amendment is refused, the pleading must be disregarded. 35. A liberal opportunity for amendment of pleadings should be allowed in justices' courts, even to set up the question of title. 36. Justices' courts possess the same powers as to amendments as courts of record, and should allow amendments in all cases where the rights and interests of the adverse party will not be put in jeopardy. 37. If a justice of the peace has power to strike out one of several plaintiffs from a complaint, he has no power subsequently to restore him. 38. The power of amending process and pleadings under the Code, by adding or striking out the names of parties, and the correction of mistakes, &c., does not apply to justices' courts. 39. A justice of the peace may allow an amendment of a complaint by changing the allegations for assault and battery to those for injury to property. 40. If, in any case, a refusal of a justice to allow an amendment of a pleading is ground for an appeal, it can be only when no injustice would result from granting the application. 41. A justice of the peace should not allow an amendment of an answer, upon the trial, by adding a new defense. 42. A defense which, in a justice's court, accrues after the closing of the testimony, but before the case is submitted, should be set up by amendment. 43. A justice of the peace has no authority to amend a summons by correcting a name, after its service, the defendant not appearing. 44. (16 Q.) Matter in defense, submission to arbitration, in a justice's court, arising after issue joined, may be pleaded puis darien continuance. 45. A plea in abatement puis darien continuance, in a justice's court, is the proper mode of taking advantage of an agreement to submit to arbitration, made after issue joined. 46. A defendant, in a justice's court, need not plead in abatement the defect or nonjoinder of parties plaintiff, where the defect appears on the face of the complaint. He can move for a non-suit. 47. The misjoinder of husband and wife, in an action brought in a justice's court, may be taken advantage of by motion for a non-suit, not by demurrer. 48. A plea in abatement of the non-joinder of parties defendant, in a justice's court, which is adjudged bad, is waived by subsequently pleading to the merits, so as not to be reviewed on appeal. 49. A defendant, in a justice's court, has no right to object to the non-joinder of a party, without giving notice of it. 50. Whether a plea in abatement is abrogated by the Code or not, there is no difficulty in giving notice of it as a defense. 51. There is no rule which will allow evidence to be given as a bar, without answer or notice setting it up. 52. (17 Q.) By pleading in bar, in a justice's court, the right to a trial upon the plea in abatement is lost. 53. Where a party, in a justice's court, pleads to the jurisdiction, and also to the merits, the former plea may be disregarded, and the cause tried upon the merits. 54. The answer, in a justice's court. under the Code, must contain every defense, whether in abatement or in bar, upon which the defendant intends to rely. 55. The distinction between pleas in abalement and in bar is abolished by the Code. 56. A defendant, in a justice's court, may unite in his answer the non-joinder of parties defendant, or the pendency of a former suit, with separate defenses on the merits. 57. (18 Q.) In justice's courts pleadings are to be treated with great liberality, and any allegation or denial which apprises the opposite party of what is intended will be sufficient. Great latitude is allowed in pleading, and courts construe the pleadings liberally. 58. (19 Q.) If a complaint is deemed insufficient, it should be demurred to. No pleading in a justice's court can be amended on appeal. 59. If a defendant would object that the complaint is not sufficiently explicit, he should demur for that cause. 60. Objections to a defense for insufficiency must be made by demurrer. 61. A justice of the peace has no authority upon a motion, to strike out a pleading or a defense set up in an answer. 62. If parties go to trial upon a complaint, however defective, without objection, and the plaintiff proves a good cause of action, a judgment in his favor will be sustained. 63. A general demurrer to a complaint, is insufficient. The grounds of objection must be stated. 64. If a complaint does not state facts sufficient to constitute a cause of action the defendant will not be deemed to have waived his right to take advantage of such defect by failing to demur. He can take advantage of the defect at any stage of the cause. 65. (20 Q.) A plaintiff must prove his demand by legal evidence, although the defendant fails to appear or answer. The default does not admit the plaintiff's claim. 66. It is not a waiver of the defendant's answer, nor a confession of the cause of action, by his not appearing at the trial. The plaintiff must still prove his case. 67. A judgment rendered without evidence prima facie to support it, will be reversed for that reason, on appeal, whether the defendant appeared in the court below or not. 68. Judgment for damages suffered by a breach of contract, given upon a mere estimate, has not competent evidence to support it. 69. If a justice of the peace renders judgment upon a statement of facts received from the attorneys of the respective parties, without examining any witnesses, the judgment cannot be sustained. 70. Where a defendant does not appear on the trial, and does not claim that injustice has been done him, the appellate court will not be astute to discover defects in the plaintiff's evidence. 71. Where a return of a justice does not show evidence sufficient to sustain the judgment, and he does not certify that his return contains all the evidence given, the appellate court, to support the judgment, will presume that there was other and sufficient evidence given to warrant the judgment. 72. Where a defendant does not deny the plaintiff's claim, but merely alleges a sel off, which is not proven on the trial, judgment will be rendered for the plaintiff. 73. In an action against an indorser upon a promissory note, where the defendant does not appear and answer, the plaintiff must nevertheless prove a demand and notice of nonpayment. 74. (22 Q.) A variance between the complaint and the proof of one of the christian names of a party will be considered immaterial, and therefore disregarded. 75. The service of a summons upon John Doe, by copy, does not authorize a judgment against one Bush, who was in some way substituted in his place as defendant, without appearance on his part. 76. Under a general denial in an action for labor and services, rendered at a specified time, the defendant may offer in evidence a written contract between the parties. It is a question of evidence, not of pleading. 77. A recovery may be had upon a quantum meruit for work and labor, although the complaint is upon a special agreement only, which is not put in evidence, provided the whole merits are before the court. 78. (23 Q.) All executions, issued by justices' courts are required by the Code, to be made returnable in sixty days. It is no objection that it is made returnable within sixty days from its date. 79. (24 Q.) The marine court and justices' courts, have no jurisdiction to issue final process ca. sa, against the person. 80. After a transcript of a justice's judgment has been filed in the county clerk's office, an attorney at law may issue execution on the judgment. 81. After an execution against property has been returned unsatisfied, an execution cannot issue against the person, upon allegations of a fraudulent contract, unless the action is one in which the defendant might have been arrested. 82. (25 Q.) No execution can issue, after the death of the plaintiff, until the suit has been revived. 83. (26 Q.) An execution may be renewed by the justice while it remains unsatisfied, even though levied on sufficient property, where there is not time enough to sell. 84. An execution may be renewed on the last day it has to run, so as to retain its lien on property in the hands of the officer held for want of bidders. 85. It seems, that an execution issued more than five years after judgment rendered, is not only irregular, but void. |