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repair premises rented by her as her separate estate; and has power to appoint a next friend in such action.

3. (2 Q.) A confesssion of judgment before a justice of the peace, who is father-in-law to the plaintiff, is illegal on the ground of relationship.

4. (4 Q.) In a case of "mutual accounts," where the claims of both parties, each against the other, amount together to more than $400, one of the parties cannot sue the other in a justice's court; it has no jurisdiction.

5. Where the plaintiff's demand, and the defendant's claim proved on the trial amount to less than $400, a justice of the peace has jurisdiction, although the whole note, upon which the plaintiff claimed a balance, together with the defendant's claim would exceed $400.

6. It is fully settled that payments made towards satisfying a debt, are not demands, and constitute no part of an account, but extinguish the debt pro tanto.

7. In an action upon a note claiming a balance of $186, given on the settlement of accounts between the parties, where a defense of mistake in fact is interposed as to the amount claimed, and it becomes necessary to examine accounts between the parties to the amount of $2000, the action is one of which a justice of the peace has no jurisdiction. 8. Where the plaintiff sues in a court of record in an action arising on contract for the recovery of money only and proves contested demands, which with those established by the defendant exceed $400, is entitled to costs, if he recovers any amount, as a justice of the peace has no jurisdiction of such an action.

9. The statute expressly prohibits a justice of the peace from passing judgment between parties upon demands of each against the other, arising upon contract, and amounting together to over $400. But in order to oust a justice of his jurisdiction, in an action before him, on the ground that the sum total of the accounts on both sides exceeds $400, the fact must be proved by legal evidence, and the evidence must legitimately tend

to establish such fact.

10. (5 Q.) The statute declaring that no judge of any court can sit as such in any cause in which he is a party, extends to justices of the peace.

11. Where one of the members of a court of sessions granting an order of maintenance, is one of the persons who, as superintendents of the poor, apply for the order, the court has no jurisdiction.

12. The judiciary act (1847) which forbids a partner or clerk of a judge to practice before him "as attorney, solicitor, or counsel," is not applicable to a justice's court.

13. The statutes suspending the jurisdiction of justice's of the peace, in case they shall become inn holders or tavern keepers in fact, after their election, does not disqualify them from entertaining proceedings against a person for refusing to work on a highway on the complaint of the overseers of highways, although he was at the time of his election, and when the proceedings were had, a tavern keeper. Those statutes relate solely to the civil jurisdiction of justices.

14. The marine court and a justice's court are by statute expressly deprived of the jurisdiction of a cause, against a non-resident defendant, sued by a summons returnable more than four days after its date, or served more than two days before the return day; and appearing and pleading to the action, will not authorize the entry of judgment against him.

14. A justice of the peace is not disqualified from trying a cause, by reason of his having been a juror in a former action between the same parties and for the same cause, wherein a verdict was rendered for the plaintiff.

15. (6 Q.) Justice's courts have jurisdiction of actions by executors and administrators; but have no jurisdiction of actions against them.

16. Whether an action on the official bond of an executor or administrator is an action against the executor or administrator as such, within this section, excluding justice's courts from cognizance of such actions.-Quere.

17. A justice of the peace has no jurisdiction of an action of trespass for tearing and injuring plaintiffs clothes, if it was done in connection with an assault upon his person. 18. A justice of the peace has jurisdiction of an action for an injury to plaintiff's horse, although the plaintiff might have maintained an action in the supreme court for an assault and battery upon him.

19. The marine or justice's courts have no jurisdiction of an action for waste where the complaint alleges a forfeiture, and prays for a recovery of possession. The title to real estate appears by the pleadings.

$55. Answer of title to land.

(Same as § 48, in 1848.)

In every action brought in a court of justice of the peace where the title to real property shall come in question, the defendant may, either with or without other matter of defense, set forth in his answer, any matter showing that such title will come in question. Such answer shall be in writing, signed by the defendant or his attorney, and delivered to the justice. The justice shall thereupon countersign the same, and deliver it to the plaintiff.

Questions.

1. Question. Can consent give a justice of the peace jurisdiction to try a question of title to lands?

2. Q. Does actual possession of lands involve title so as to deprive a justice of the peace of jurisdiction?

3. Q. Does a right of way involve title to lands so as to deprive a justice of peace of jurisdiction?

4. Q. Does a mere license to enter on lands deprive a justice of the peace of jurisdiction ? 5. Q. When and how must a question of title to land be raised by the pleadings to deprive a justice of the peace of jurisdiction?

6. Q. Is actual occupation by Indians of lands on their reservation sufficient evidence of title to deprive a justice of the peace of jurisdiction?

7. Q. Should justice's of the peace give liberal opportunity for amending pleadings so as to present questions of title to land?

8. Q. When is the evidence of title to lands on appeal to the court of appeals shown to have been raised in the court below?

1. Question. Can consent give a justice of the peace jurisdiction to try a question of title to lands?

Answer. In Stryker agt. Mott, 6 Wend., 465, General Term, January, 1831, MARCY, J., it was decided, that in an action for trespass in a justice's court, a plea of right of way puts in question the title to lands, and depríves a justice of the peace of jurisdiction; and the consent of parties that the suit shall proceed, notwithstanding such plea, does not give jurisdiction. Although a judgment rendered by the justice on such an issue is void, the party against whom it is rendered is, notwithstanding, entitled to seek its reversal.

2. Q. Does actual possession of lands involve title so as to deprive a justice of the peace of jurisdiction;

A. In Ehle agt. Quackenboss, 6 Hill., 539, General Term, May, 1844, BEARDSLEY, J., it was decided, that the question of actual possession of lands is not one of title, within the meaning of 2 R. S., 226, § 4, and a justice of the peace bas jurisdiction, and may try. and determine it. Accordingly, where the plaintiff in an action of trespass quare clausum fregit, brought in a justice's court, gave evidence tending to show that he was in the actual possession of the locus in quo at the time that the alleged trespass was committed; held, that the defendant had a right to give counter evidence, and prove possession in

himself.

In Hardrop agt. Gallagher, 2 E. D. Smith, 523, General Term, March, 1854, INGRAHAM, J., it was decided, that in an action for the injury to the possession of real estate-damages arising from blasting a house-the title to real estate does not necessarily come in question, so as to oust a justice of the peace of jurisdiction. An occupant of the premises may sustain such an action.

In Smith agt. Riggs, 2 Duer, 623, General Term, May, 1853, OAKLEY, J., it was decided, that the question of title to lands, which is in all cases, a question of ownership, does not arise in an action to recover damages for the breach of an agreement to convey lands, when the only issue made by the pleadings is, whether an incohate right of dower in the wife of the defendant was a subsisting incumbrance.

In Powell agt. Rust, 1 Code R. N. S., 173, General Term, May, 1850, GRIDLEY, J., it was decided, that where the defendant claimed by virtue of a written agreement between him and plaintiff for the sale of the premises by defendant to plaintiff, containing certain reservations, the right to enter with teams and take away certain growing trees and shrubs, on the plaintiff's land, which right was denied by the plaintiff's reply; held, that under the issue the title to land came in question; as whatever grows upon and is annexed to the freehold is real estate; and title embraces the right to the possession; and every thing but the bare naked possession.

In Freedonia and Sinclearville Plank Road Company agt. Wait, 27 Barb., 215 General Term, May, 1858, MARVIN, J., it was decided, that the question of actual possession of lands, is not a question of title within the meaning of the statute; and such a question is often litigated in justice's courts. But neither party can resort to evidence to prove the title of the land in him, for the purpose of showing a constructive possession if the other party objects and disputes his title. The justice can only try the question of actual possession.

3. Q. Does a right o, way involve title to lands so as to deprive a justice of the peace of jurisdiction?

A. In Heaton agt. Ferris, 1 John., 146, General Term, February, 1806, it was decided by THE COURT that, in trespass quare clausum fregit, where the defendant pleaded in justification a right of way over the land of the plaintiff, and a verdict was given for the plaintiff of six cents, that the plaintiff was entitled to full costs under the statute. The title to land came in question. The action being in the supreme court.

In Striker agt. Mott, 6 Wend., 465, General Term, January, 1831, MARCY, J., it was decided that, in an action of trespass, in a justice's court, a plea of right of way puts in question the title to lands, and deprives a justice of the peace of jurisdiction.

In Freedonia and Sinclearville Plank Road Co. agt. Wait, 27 Barb., 216, General Term, May, 1858, MARVIN, J., it was decided that, in an action brought by a plank road company in a justice's court, for penalties for passing its toll gate without paying toll, the defendant, by not answering that the locus in quo was a public highway, did not make a question of title, and the justice had jurisdiction.

In Hastings agt. Glenn, 1 E. D. Smith, 402, General Term, May, 1852, DALY, J., it was decided that, in an action for obstructing a right of way, where the defendant answers by a general denial, the title to real estate cannot be said to come in question so as to onst a justice's court from jurisdiction, if the defendant, being called as a witness, in the course of his testimony proves, on his own behalf, the plaintiff's title. The defendant himself having shown the title, it cannot be regarded as disputed, within the meaning of the statute, so as to oust the justice of jurisdiction.

4. Q. Does a mere license to enter on lands deprive a justice of the peace of jurisdiction A. In Doolittle agt. Eddy, 7 Barb., 79, General Term, September, 1849, HAND, J., it was decided that a mere license does not draw the title in question with the statute in relation to the jurisdiction of justices of the peace. An executory contract for the sale and purchase of land, giving to the purchaser a right to enter and possess the premises until default in the payment of the purchase money, without any time being fixed, and without any reservation of rent, is, as respects the possession, but a license, and not a lease. It is not a permanent interest in the land, nor is it an estate, nor does the relation of landlord and tenant exist.

In O'Reiley agt. Davis, 4 Sandf., 723, General Term, April, 1850, SANDFORD, J., it was decided that, in an action of trespass for entering and taking awav rock and stone

from plaintiff's land, where the defendant sets up in his answer that he entered pursuant to a contract by which he was to blast and remove the rock to enable the plaintiff to to erect houses on the land, and was to have the rock as a part of his compensation, it was held that "a claim of title to real property" did not arise on the pleadings.

In Launit: agt. Barnum, 4 Sandf., 637, General Term, June, 1851, it was decided by THE COURT that an issue on a license to do an act on real estate, which would otherwise be a trespass, does not present for trial “a claim of title to real property."

In Mallar agt. Bayard, 15 Abb.. 449, N. Y. Superior Court, Special Term, January, 1863, ROBERTSON, J., it was decided, that the term "title" in the statute, (Code, § 304, sub. 1,) means right of possession and of course legal possession. It does not include either possession in fact, or mere right of property, and where actual possession is enough to maintain the action, evidence in regard to that, does not draw the title in question, although may be the basis of a right. Thus, where in an action for entering plaintiff's premises and carrying off plaintiffs property, the answer averred that the entry was with the consent, knowledge, and approval of the plaintiff, and that the plaintiff held the premises under a lease which he had taken in his own name. but for the benefit of the defendant, who paid the rent; held, that the title to real property did not come in question. A plea of a license to enter upon real property does not bring the title to land in question.

5. Q. When and how must a question of title to land be raised by the pleadings to deprive a justice of the peace of jurisdiction?

4. See § 59 for the answer to this question.

6. Q. Is actual occupation by Indians of lands on their reservation sufficient evidence of title to deprive a justice of the peace of jurisdiction?

A. In Smith agt. Mitten, 13 How., 328, General Term, January, 1856, MULLETT, J., it was decided that where the Tonuwanda Indians, in answer to an action for forcibly taking and carrying away a quantity of firewood, alleged that such wood was grown and cut upon the Tonawanda Reservation, which is Indian lands, and owned and occupied by the Seneca Nation of Indians, and that they reside thereon and occupy said reservation, and that they are members of the said nation; and that, in their own right as such Indians, they took, carried away, and converted the said wood as they lawfully might do; held, that the answer set up title to lands by the defendant. The Indians title is described by the term occupancy of their reservation-they derive their right of no one, and hold it of nobody; there is, therefore, no distinction between their occupancy and their title to their reservation.

7. Q. Should justice's of the peace give liberal opportunity for amending pleadings so as to present questions of title to land?

In Smith agt. Mitten, 13 How., 330, General Term, January, 1856, MULLETT, J., it was decided, that the justice oaght to have known that the defendants had a legal right to set up a defense of title to lands, and thereby onst him of his jurisdiction of the action, and instead of making his court a kind of technical snare, he ought to give his suitors a fair and liberal opportunity, by amending their allegations, so as to present the real questions which they were disposed to litigate.

8. Q. When is the evidence of litle to lands on appeal to the court of appeals shown to have been raised in the court below?

A. In Pugsley agt. Kesselburgh, 7 How., 403, Court of Appeals, January, 1853, JOHNSON, J.; Wiggins agt. Talmadge, 7 How., 404, Court of Appeals, January, 1853, JOHNSON, J., it was decided, that it is not necessary that the record should show the identity of a snit commenced before a justice of the peace, with that commenced in the supreme court for the same cause of action, where title to land is pleaded before the justice. Motion papers may be examined to ascertain that the suit was commenced in a justices court. Where the suits in the justice's court and the supreme court are identical, this court of appeals have no jurisdiction on appeal.

In Cook agt. Nellis, 18 N. Y. R., 126, September, 1858, DENIO, J., it was decided, that an action commenced in the county court or supreme court, under §§ 55 and 56 of the Code, upon the discontinuance of an action in a justice's court, involving the title to land, is an action originally commenced in a court of a justice of the peace.

What is the result of the decisions under this section ?

1. (1 Q.) A plea of right of way puts in question the title to lands, in an action of trespass, and deprives a justice of the peace of jurisdiction: and the consent of parties cannot give jurisdiction in such a case.

2. (2 Q.) The question of actual possession of lands is not one of title, and a justice of the peace has jurisdiction, and may try and determine it.

3. An action for an injury to the possession of a house, caused by blasting, does not necessarily involve the question of title to real estate, so as to oust a justice's court of jurisdiction. The occupant of the house may sustain such an action.

4. The question of title to lands is, in all cases, a question of ownership; and this ques tion does not arise in an action to recover damages for the breach of an agreement to convey lands, where the only issue made by the pleadings is an inchoate right of dower in the wife of the defendant.

5. Title embraces the right to the possession; and everything but the bare, naked possession; where a right is claimed by a party, under a written agreement for the sale of lands, containing reservations, to enter upon another's land, for the purpose of taking away certain growing trees, shrubs, &e., which is denied by the owner of the land, the title to land comes in question.

6. A justice of the peace has no jurisdiction to try a disputed title to real property; but the question of actual possession is not a question of title, within the meaning of the prohibition in the statute, and may be tried in justices' courts.

7. (3 Q.) In an action of trespass or trespass quare clausum fregit, in a justice's court, a plea of right of way puts in issue the title to lands, and deprives the justice of jurisdiction. 8. In an action brought by a plank road company before a justice of the peace, for penalties for passing its toll gate without paying toll, if the defendant does not answer that the locus in quo is a public highway, the question of title is not raised, and the justice has jurisdiction.

9. In an action for obstructing a right of way, where the defendant answers by a general denial, the title to real estate does not come in question.

10. Where the defendant, in an action for obstructing a right of way, proves on his own behalf the plaintiff's title, it cannot be regarded as a disputed question of title, within the meaning of the statute.

11. (4 Q.) A mere license to enter upon lands does not draw the title in question within the statute in relation to the jurisdiction of justices of the peace.

12. In an action of trespass for entering and taking away rock and stone from plaintiff's land, title to lands does not arise where the defendant answers that he entered under a contract to blast and remove the rock, and which he was to have as part of his compensation for his work.

13. Where there is an issue raised on a license to do an act on real estate, which would otherwise be a trespass, does not present for trial "a claim of title to real property." 14. A plea of license to enter upon real property does not bring the title to land in question.

15. (6 Q.) The Indian title to lands is described by the term occupancy of their reser vation. There is no distinction between their occupancy and their title. Where, therefore, they set up in their answer to an action for forcibly taking and carrying away a quantity of firewood, that such wood was grown and cut upon their reservation, upon which they reside and occupy, and that they took and carried away said wood in their own lawful right, the title to lands is set up by them.

16. (7 Q.) Justices' courts, especially, should give suitors a fair and liberal opportunity for amending their allegations, so as to present the real questions they are disposed to litigate, although title to lands may be set up by such amendment.

17. (8 Q.) On appeal, it is not necessary that the record should show the identity of a suit commenced before a justice of the peace with that commenced in the supreme court, where title to land is pleaded before the justice. Motion papers may be examined to ascertain that fact.

18. Where the suit in the justice's court and the supreme court are identical, the court of appeals have no jurisdiction on appeal.

9. An action commenced in the county court or supreme court, under sections 55 and

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