62. Proceedings where several causes of action, and answer of title as to one. 63. Docketing justices' judgments and effect thereof. 64. Rules in justices' courts. Rule 1. The pleadings. 2. Pleadings, how put in. 3. Complaint. 4. Answer. 5. Pleadings, what to contain. 6. Demurrer. 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. Executions, 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. [45.] 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 fourteenth, one thousand eight hundred and forty, and the provisions contained in sections fifty-nine to sixty-six, of the same article, both inclusive, are repealed, and the provisions of this title substituted in place thereof.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 § 53. [46.] (Am'd 1849, 1851, 1860, 1861, 1862, 1865.) Jurisdiction of these courts. Justices of the peace shall have civil jurisdiction in the following actions, and no others; excepting as in the second section* it is provided: 1. In actions arising on contracts for the recovery of money only if the sum claimed does not exceed two hundred dollars. 2. An action for damages for injury to rights pertaining to the person, or to personal or real property, if the damages claimed do not exceed two hundred dollars. 3. An action for a penalty not exceeding two hundred dollars. * 2 of ch. 158, Laws of 1861. 4. An action commenced by attachment of property, as now provided by statute, if the debt or damages claimed do not exceed two hundred dollars. 5. An action upon bond conditioned for the payment of money, not exceeding two hundred dollars, though the penalty exceed that sum, the judgment to be given for the sum actually due. Where the payments are to be made by installments, an action may be brought for each installment as it becomes due. 6. An action upon a surety bond taken by them, though the penalty or amount claimed exceed two hundred dollars. 7. An action upon a judgment rendered in a court of justice of the peace, or by a justice, or other inferior court in a city where such action is not prohibited by section seventy-one. 8. To take and enter judgment on the confession of a defendant, where the amount confessed shall not exceed five hundred dollars, in the manner prescribed by article eight, title four, chapter two, of part three of the Revised Statutes. 9. An action for damages for fraud in the sale, purchase or exchange of personal property, if the damages claimed do not exceed two hundred dollars. 10. [§ 1.] An action to recover the possession of personal property claimed, the value of which, as stated in the affidavit of the plaintiff, his agent or attorney, shall not exceed the sum of one hundred dollars. [§ 2.] The plaintiff in such action at the time of issuing the summons, but not afterward, may claim the immediate delivery of such property as hereinafter provided. [§ 3.] Before any process shall be issued in an action to recover the possession of personal property, the plaintiff, his agent or attorney, shall make proof by affidavit showing: 1. That the plaintiff is the owner, or entitled to immediate possession of the property claimed, particularly describing the same. 2. That such property is wrongfully withheld or detained by the defendant. 3. The cause of such detention or withholding thereof, according to the best knowledge, information and belief of the person making the affidavit. 4. That said personal property has not been taken for any tax, fine or assessment pursuant to statute, or seized by virtue of an execution or attachment against the property of said plaintiff, or if so seized, that it is exempt from such seizure by statute. 5. The actual value of said personal property. [§ 4.] On receipt of such affidavit, and an undertaking in writing, executed by one or more sufficient sureties, to be approved by the justice of the peace before whom such action is commenced, to the effect that they are bound in double the value of such property as stated in said affidavit, for the prosecution of said action, and for the return of said property to the defendant, if return thereof be adjudged, and for the payment to him of such sum as may for any cause be recovered against said plaintiff, the justice shall indorse upon said affidavit a direction to any constable of the county in which said justice shall reside, requiring said constable to take the property described therein from the defendant, and keep the same to be disposed of according to law; and the said justice shall, at the same time, issue a summons directed to the defendant, and requiring him to appear before said justice at a time and place to be therein specified, and not more than twelve days from the date thereof, to answer the complaint of said plaintiff; and the said summons shall contain a notice to the defendant that in case he shall fail to appear at the time and place therein mentioned, the plaintiff will have judgment for the possession of the property described in said affidavit, with the costs and disbursements of said action, [§ 5.] The constable to whom said affidavit, indorsement and summons shall be delivered, shall forthwith take the property described in said affidavit, if he can find the same, and shall keep the same in his custody. He shall thereupon, without delay, serve upon said defendant a copy of such affidavit, notice and summons, by delivering the same to him personally, if he can be found in said county; if not found, to the agent of the defendant in whose possession said prop erty shall be found; if neither can be found, by leaving such copies at the last or usual place of abode of the defendant, with some person of suitable age and discretion. And shall forthwith make a return of his proceedings thereon, and the manner of serving the same, to the justice who issued the said summons. [§ 6.] The defendant may at any time after such service, and at least two days before the return day of said summons, serve upon plaintiff or upon the constable who made such service, a notice in writing that he excepts to the sureties in said bond or undertaking; and if he fails to do so, all objection thereto shall be waived. If such notice be served, the sureties shall justify, or the plaintiff give new sureties on the return day of said summons, who shall then appear and justify, or said justice shall order said property delivered to defendant, and shall also render judgment for defendant's costs and disbursements. [§ 7.] At any time before the return day of said summons, the said defendant may, if he has not excepted to plaintiff's sureties, require the return of said property to him, upon giving to the plaintiff, and filing same with the justice, a written undertaking, with one or more sureties, who shall justify before said justice on the return day of said summons, to the effect that they are bound in double the value of said property, as stated in plaintiff's affidavit, for the delivery thereof to said plaintiff, if such delivery be adjudged, and for the payment to him of such sum as may for any cause be recovered against said defendant; and if such return be not required before the return day of said summons, the property shall be delivered to said plaintiff. [§ 8.] The qualification of sureties, and their justification under this act, shall be the same as provided in sections one hundred and ninety-four and one hundred and ninety-five of the Code, in respect to bail on arrest in the supreme court. [9.] Sections two hundred and fourteen, two hundred and fifteen and two hundred and sixteen of the Code, shall apply to proceedings and actions brought under this act, substituting the word constable for the word sheriff whenever it occurs in either of said sections. [§ 10.] The actions so commenced shall be tried in all respects as other actions are tried in justices' courts. The judgment for the plaintiff may be for the possession, or for the recovery of the possession, or the value thereof, in case a delivery cannot be had, and of damages for the detention. If the property have been delivered to the plaintiff, and the defendant claim a return thereof, judgment for the defendant may be for a return of the property, or the value thereof in case a return cannot be had, and damages for taking and withholding the same. An execution shall be issued thereon, and if the judgment be for the delivery of the possession of personal property, it shall require the officer to deliver the possession of the same, particularly describing it, to the party entitled thereto, and may at the same time require the officer to satisfy any costs or damages recovered by the same judgment out of the personal property of the party against whom it was rendered, to be specified therein, if a delivery thereof cannot be had. The execution shall be returnable within sixty days after its receipt by the officer, to the justice who issued the same. [§ 11.] In all actions for the recovery of the possession of personal property, as herein provided, if the property shall not have been delivered to plaintiff, or the defendant by answer shall claim a return thereof, the justice or jury shall assess the value thereof, and the injury sustained by the prevailing party by reason of the taking or detention thereof, and the justice shall render judgment accordingly, with costs and disbursements. [§ 12.] If it shall appear by the return of a constable that he had taken the property described in the plaintiff's affidavit, and that defendant cannot be found, and has no last place of abode in said county, or that no agent of defendant could be found on whom service could be made, the justice may proceed with the cause in the same manner as though there had been a personal service. [§ 13.] For the indorsement on said affidavit, the justice shall receive an additional fee of twenty-five cents, which shall be included in the costs of the suit. I. JUSTICE OF THE PEACE HAS JURISDICTION. a. Stamped process.-A justice of the peace has no jurisdiction of an action where the damages claimed exceed $100, unless the summons by which such action is commenced is stamped. Cole v. Bell, 48 Barb. 194; Baird v. Pridmore, 31 How. 359, (368); Aff'g S. C. 29 How. 253. A copy of summons served need not indicate that the original was duly stamped. Watson v. Morton, 27 How. 294; Rev'g S. C. 26 id. 383; 18 Abb. 138. The law requiring stamps on legal documents has been repealed, and none are now required. 14 U. S. Stat. at Large, 475, (U. S. Laws of 1867, ch. 169, § 9). b. Confession of judgment.-A noncompliance with the statute in relation to the entry of a judgment on confession does not make the judgment void, except as to creditors. Stone v. Williams, 40 Barb. 322; Gates v. Ward, 17 Barb. 424. A justice may take a confession out of the town in which he resides, and anywhere in the county. Pollock v. Aldrich, 17 How. 109. See also Stone v. Williams, supra, and Bromaghin v. Throop, 15 Johns. 477. A judgment confessed by a son-in-law be fore his father-in-law, as a justice, is void. Parties may, by consent, divide a claim of more than $500, and confess several judgments on the same. Cornell v. Cook, 7 Cow. 310. See 2 Wait's Law and Pract. 702. c. Adjoining towns.- Two towns in the same county, contiguous at either of the corners, are "adjoining," within the meaning of the statute as to jurisdiction. Holmes v. Carley, 31 N. Y. (4 Tiff.), 289; Aff'g S. C. 32 Barb. 440. See 2 Wait's Law and Pract. 52. d. Against justices.-An action may be maintained in a justice's court against a justice of the peace for refusing to issue an exetion. Van Vleck v. Burroughs, 6 Barb. 341. And for wrongfully refusing to approve an appeal bond. Tompkins v. Sands, 8 Wend. 462. e. Corporations.—A justice of the peace has no jurisdiction of an action against a foreign corporation, but such corporation may confer jurisdiction by appearing and answer ing without objection; and if the justice has jurisdiction of the subject matter of the action, the judgment will be effectual for all purposes. Paulding v. Hudson Manufacturing Co. 3 Code R. 223; 2 E. D. Smith, 38. See 2 Wait's Law and Pract. 19, 78. An action may be brought for a penalty under a corporation by-law. Walker v. Cruikshank, 2 Hill, 296. f. Amount of claim.— Although the plaintiff states his demand at an amount beyond the jurisdiction of the justice, yet if he claims damages at an amount within such jurisdiction, the proceedings are regular. Bennett v. Ingersoll, 24 Wend. 113. See 2 Wait's Law and Pract. 36. Unless he states it at more than $400. Tuttle v. Maston, 1 Johns. Cas. 25. If the damages, after deducting all set-offs amount to more than $200, the plaintiff may remit the excess and have judgment for the residue. Justice's Manual, 3d ed. 13. Where it is claimed that the mutual accounts of both parties exceed $400, the justice has jurisdiction to act until that fact is proved to his satisfaction. Glackin v. Zeller, 52 Barb. 147. g. Upon judgments.-Leave of the court must be obtained, on notice to the adverse party before an action can be brought on a judgment rendered in the district or justice's court of New York city. Thompson v. Sutphen, 2 E. D. Smith, 527; Mills v. Winslow, id. 18; S. C. 3 Code R. 44. See contra, McGuire v. Gallagher, 2 Sandf. 402; S. C. 1 Code R. 127. In actions upon judgments justices of the peace have jurisdiction. McGuire v. Gallagher, 2 Sandf. 402; 1 Code R. 127. Though the judgment exceeds $200. Humphrey v. Persons, 23 Barb. 313, (316); see S. C. 15 N. Y (1 Smith) 595. See 1 Wait's Law and Pract. 598. h. Bonds.-Actions may be brought in justices' courts upon bonds, etc. Boomer v. Laine, 10 Wend. 525. As to official bonds of executors, etc., see Mahoney v. Gunter, 10 Abb. 431; and O'Neil v. Martin, 1 E. D. Sinith, 404. See 1 Wait's Law and Pract. 120, 121, 124, 125. The jurisdiction of district courts in New York, in actions upon bonds defined. Smith v. White, 2 Daly, 72. i. Promise to discontinue.-An action may be maintained on a promise to discontinue a suit. Cobb v. Curtiss, 8 Johns. 470; Farrington v. Bullard, 40 Barb. 513. j. Injuries to personal property.Where such injury does not amount to an assault on the person. Bull v. Colton, 22 Barb. 94; Rich v. Hogeboom, 4 Denio. 453. k. Sheriff.-A justice of the peace has jurisdiction of an action against a sheriff for not returning an execution. Laughran v. Orser, 15 How. 281; S. C. 6 Duer, 697. And for an escape. Jansen v. Stoughtenburgh, 9 Johns. 369; see Brown v. Genung, 1 Wend. 115. See 1 Wait's Law and Pract. 742. 1. Wife.-An action may be brought in a justices' court for enticing away a wife. Chase v. Hale, 8 Johns. 461. m. Seamen.-A justice of the peace has jurisdiction of an action for seamen's wages, when such action is not against the owner, master, or commander. Loftus v. Clark, 1 Hilt. 310, (312.) n. School teachers.-Justices have jurisdiction of an action by district school teachers against the trustees for wages. Reynolds See I Wait's Law and Pract. 689. v. Mynard, 1 How. App. Cas. 620, (627.) o. Trespass.-An action for trespass on lands may be maintained although the cause of action arose out of the county in which the justice resides. McKeon v. Graves, 1 How. App. Cas. 345; S. C. 3 Denio. 610; sub nom. Graves v. McKeon; Aff'g S. C. 2 Denio, 639; 1 Wait's Laws and Pract. 766. p. Waiver of objection.-Objections to the jurisdiction of the court may in some cases be waived by pleading to the merits. Mahoney v. Gunter, 10 Abb. 431, (433), and cases there cited. title in his answer and thus have ousted the justice of jurisdiction, but fails to do so, the justice retains jurisdiction and the defendant is estopped from questioning it afterwards Fredonia and Sinclearville Plank Road Co v. Wait, 27 Barb. 214; Bellows v. Sackett, 15 Barb. 96; Adams v. Rivers, 11 Barb. 390. Where the defendant might have set up See also, as to waiver, note III, subd. c, post, and note X, subd. h. See 2 Wait's Law and Pract. 17 to 20. plea of title is interposed, the justice has q. Plea of title.-In an action where the jurisdiction of, and should proceed with that portion of the issue to which the defendant does not plead title. Heath v. Barmour, 35 How. 1; S. C. 53 Barb. 444; Morss v. Jacobs, 35 How. 90. See 2 Wait's Law and Pract. 245 to 254. Where the defendant admits that the plaintiff is the owner of the land on which alleged trespasses were committed, and justifies his entry thereon, on the ground of license, the plea of title should not be interposed, as the justice properly has jurisdiction of such an action. Craven v. Price, 37 How. 15; S. C. 53 Barb. 442. See also notes under § 55, post. r. Judgment in replevin can only be given in the district and marine courts of New York city for a return of the property, or for its value, if a return cannot be had (2 R. S. 530, § 49), and not as prescribed by § 277 of the Code. Stauff v. Maher, 2 Daly, 142. See 1 Wait's Law and Pract. 877 878. 2 id. 700, 701. |