and the same fees for traveling to serve the same, as are herein allowed for serving a summons issued by a justice of said district courts; for advertising for sale any property by virtue of any execution or attachment issued out of said district courts, or by any jus tice thereof, one dollar; for every day necessarily employed in attending such sale, one dollar. The said marshals shall perform all other services required of them, by law without any fees or compensation whatever therefor, and no fees, charges or other com pensation shall be allowed to, demanded or charged by any of the said marshals, except as in this act provided.

§ 6. This act shall take effect immediately.

What is the result of the decisions under this section?

1. (9 Q.) The Code has not given to the district or justices courts in the city of New York jurisdiction in actions brought for the recovery of seamen's wages.

2. The district or justices courts have jurisdiction over the defendants, in an action commenced therein against foreign corporations, where the corporations voluntarily appear and plead to the merits. A default taken before a justice officiating in the absence of a local justice, may be opened by the latter.

3. District courts have no jurisdiction of actions to recover the possession of personal prop erty. This decision was made in January 1862. The legislature in that year (1862) passed a law, giving to these courts jurisdiction in such actions by making § 206 to § 217 of the Code, inclusive, applicable to these courts, and also to the marine court of the city of New York. At the same legislature an act was passed giving to the district courts jurisdiction of actions in which the people of the state are a party, where such actions are brought by the overseers of the poor, or the commissioners of public charities and correction in the city of New York, upon bastardy or abandonment bonds, and the amount demanded or recovered does not exceed $500 &c. Both these statutes will be found under Question

9.

4. (10 Q) Executors and administrators may sue in these courts, although they cannot be sued in them. But an action brought against one of the obligors of a bond, conditioned for the faithful execution of his duties as an administrator, is an action against the defendant personally, and may be within the jurisdiction of these courts.

5. (12 Q.) Where a suit is commenced in a district court by personal service of a summons, and both parties appear, and the plaintiff declares on a promissory note for $100, and the defendant consents that judgment may be rendered against him for the amount of the note, the judgment will be valid, without an affidavit of the amount due, or confes sion in writing, or proof. Under the Code of 1848, a justice of the peace had no power to take judgment by confession, for a sum greater than $100.

6. (13 Q.) The Code (§ 71), forbidding the commencement of actions upon judgments in any court of this state, except a court of a justice of the peace, without leave of the court, for good cause shown, on notice to the adverse party, applies to the marine and district courts in the city of New York. But a justice's judgment recovered before the Code took effect, is not within the provision of section 71, prohibiting suits upon such judgments within five years after its rendition.

7. (14 Q.) In an action in a justice's court, concerning the separate property of a married woman, in which the husband is joined, the justice has power to appoint a next friend. But by the amendment of section 114 of the Code (in 1857) the necessity of a next friend or guardian for a married woman is dispensed with in every case.

8. (15 Q.) A district court has no jurisdiction, in an action, when neither the plaintiff nor either of the defendants resides within the district if any of them are residents of the city of New York. No valid judgment can be rendered, although the parties appear and go to trial on the merits, without objection.

9. Where a plaintiff resides out of the city of New York, he may bring his action before any justice of the district courts in the city; and in such case, the summons must be served not less than two days before the time for the appearance mentioned in it. A

service on the 14th and returnable on the 16th, is good. This decision was made before the amendment to this section (4) in 1862. That amendment requires a non-resident plaintiff of that city, to bring his action in the district in which the defendant or one of the defendants resides, unless all the defendants reside out of the city, in which case it may be brought in any district.

9. (17 Q.) The non-attendance of a justice, before whom an action is commenced, at the adjourned day, does not authorize a justice of another district to try the cause.

10. (18 Q.) In the absence of the justice on the return day of process, or upon any day to which a cause shall have been adjourned, the clerk may direct an adjournment to such time as the justice may be in attendance, not exceeding six days. But the clerk is not authorized to adjourn the cause until the hour fixed on the return day, or to which the cause may have been adjourned.

11. (22 Q.) An attorney of the supreme court, or any other person, who is deputed by a justice of the peace to serve, and does serve, the summons in the action, is prohibited from acting as counsel on the trial, by the statute which forbids a constable, who serves the original or jury process, from acting as counsel at the trial. Where the president of an incorporated society appears as the defendant's agent, or attorney in fact, in a district court, it will be assumed that he had authority to do so until the contrary is shown; appearing and pleading in the suit as their agent his admissions upon the joining of issue is binding upon them.

12. (23 Q.) It is not necessary that a non-resident, bringing an action in the district courts, should commence his suit by warrant or short summons and give security. He may, if he so elect, sue by the ordinary long summons. It was so decided, several times, before the amendment of 1862 to section 13. It is perhaps difficult to say whether the legislature by the amendment, intended to have that section apply equally imperative to non-resident plaintiffs, as to non-resident defendants-if they did, they have used the words in parenthesis very unfortunately to produce such an effect.

13. (24 Q.) A non-resident guardian ad litem for an infant plaintiff, whether a responsible person or not, may be required to give security for costs. And this is so, although some of the plaintiffs in the action are residents. A guardian ad litem for an infant plaintiff must be a competent and responsible person. And where the court clearly discover that the interests of infants are committed to a guardian who is not likely to protect

them, he should be removed and a proper one appointed.

14. Where there is an appeal from the district court, to the common pleas, where one of the parties to the action is ascertained to be an infant, the appellate court, upon the application of the other party, as well as upon the infant's request, will appoint a guardian ad litem, where none has been appointed by the justice.

15. (27 Q.) It is not necessary that the name of the party to be arrested should be stated. If unknown, he may be designated as the real defendant in the suit or proceeding, and whose name is not known, or by any name.

16. Misnomer of defendants may be taken advantage of by motion to set aside the summons and complaint. It is doubtful whether under the Code, there is a remedy in such case by answer. It is not allowable to a plaintiff to use a fictitious name at his discretion; but only when he is ignorant of the true name. When the name of a defend. ant, sued by a fictitious name, becomes known, it should be substituted, and the proceedings be amended in that respect. If the defendant appears and discloses his true name, and defends the suit, a judgment against "John Doe," as named in the process, will be set aside as erroneous.

17. Where process from a district court is issued against a defendant by a fictitions name, and is returned served by copy, it should appear that the summons was left at the residence or place of business of the person whose real name may afterwards be inserted as defendant, in case he does not appear on the return day.

18. (30 Q.) Where a non-resident defendant, is sued by a summons, returnable more than four days after its date, or served more than two days before the return day, the

district court acquires no jurisdiction of the cause; and if the defendant should, when brought before the court by such illegal process, ask for and obtain an adjournment, and under force of the process, plead to the action, it would not authorize the entry of judgment against him. A person having no legal residence any where, may be sued by long summons. The process is appropriate unless the defendant is a non-resident of the county. A justice cannot proceed by short summons against a defendant, without proof of his non-residence, to give the court jurisdiction.

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19. Where nothing appears on the trial, nor in any of the proceedings before the justice, showing that the parties do not reside within his district, and both appear and trial upon the merits, without objection; it is not the duty of the justice to volunteer any inquiry into the residence of the parties.

20. Where a resident of another state comes to this state, solely to be examined as a witness in an action to be tried in one of its courts, and attends in good faith for that purpose, he is exempt from the service of a summons upon him.

21. (32 Q.) Service of a summons, with or without an order of arrest, on an election day, and all proceedings under it, are void.

22. (33 Q.) To authorize legal service of summons upon a foreign corporation, where it is made upon its managing agent in this state; such agent must be one whose agency extends to all the transactions of the corporation-one who has, or is engaged in the management of the corporation, in distinction from the management of a particular branch or department of its business. A baggage master in the employ of a railroad corporation is not such a managing agent as authorizes a summons served upon him to be considered the commencement of a suit against the corporation. But an agent of an insurance company, properly appointed and qualified to procure and effect insurance for the company, residing at a different place from where the principal office of the company is located, is such "managing agent" that legal service of a summons and complaint against the company may be made by serving on him. Where it is doubtful whether or not the party served is the managing agent of the defendant's corporation, the onus is on the defendant to show the proper relation between them.

23. (36 Q.) It seems, that the service of a summons made by a person under the age of twenty-one years is not good. But objection to the manner of the service of the summons, in the district courts, is matter in abatement only, and is waived by pleading to the merits.

24. (50 Q.) Before a justice of a district court, can acquire jurisdiction to proceed to trial in an action commenced by warrant of attachment, the return of the officer serving the attachment must show a strict compliance with the statute; especially where the defendant has not appeared. Service of the attachment and inventory upon a person in charge of the property attached is sufficient, unless it appears affirmatively that the defendant has no place of residence within the county.

25. (54 Q.) Where a short summons has been issued by a justice in behalf of a nonresident, without necessary security having been given, the justice should non-suit the plaintiff the moment that fact is made known to him.

26. (71 Q.) When a cause, in a district court, is upon the return day of the summons, adjourned by the clerk, in consequence of the absence of the justice, the proper time to demand a jury, is after joining issue upon the adjourned day, and not upon the return day. An exception to the decision of a justice denying a jury trial is not necessary to authorize a review by the appellate court

27. (73 Q.) Any irregularity in summoning the jury is a ground for challenge to the array, and must be made in the first instance. It is too late to make the objection after the jury are empanneled and sworn.

28. (75 Q.) In summary proceedings to recover the possession of land in the district courts, the justice has no power to summon talesmen, to form a jury. This proceeding is entirely statutory, and must be conducted in strict accordance with the provisions of

the law.

29. (78 Q.) If a party demands a jury trial in a district court, but neglects to appear' on the adjourned day, the justice may proceed to hear the cause without a jury. A failure to pay the jury fees in season for the issuing of a venire, in such a case, is a waiver of the right to jury trial.

30. (90 Q.) Where a party, against whom a judgment has been rendered in a district court, consents that it be opened, and the cause tried, a subsequent judgment rendered against such party will be regular.-quere? Whether a justice of a district court may open a judgment rendered by him through inadvertence.

31. The opening of a cause, in a district court, for further testimony, while the parties, with their witnesses, are all present, and when it does not appear that the opposing party is in any wise prejudiced, is in the discretion of the justice. But a justice has no power to open a case for further hearing, after the day of trial is passed, and the cause has been submitted by the plaintiff, and the witnesses have departed.

32. A judgment once rendered in a district court, where the defendant has duly appeared, cannot be opened on appeal, and a new trial allowed, upon the ground that the defendant neglected to produce certain evidence, which would have been a bar to the suit. The only relief is under the 360th section of the Code, and that applies only in cases where the defendant has failed to appear, and satisfactorily excuse his default.

33. (91 Q.) All the evidence, documentary and parol, used on the trial in a district court, should be furnished to the appellate court upon appeal.

34. An objection to testimony is too late, when made for the first time on appeal. If the return is defective, in omitting to note objections taken at the trial, the appellant, by motion, should cause it to be corrected and its omission supplied.

35. (97 Q.) In order to justify the arrest of a defendant on execution issued upon a judgment obtained against him in a district court, the justice must state in the judgment, and enter it in his docket, that the defendant is subject to arrest and imprisonment. It is his judicial duty and office, in trying a cause, to pass upon the question of the defendant's liability to arrest, as definitely as upon that of his liability in the action, and to embody his judicial conclusion in his judgment. There is no provision in the statute, for an inquiry into facts subsequently to a judgment, to justify an arrest.

36. (99 Q.) An execution upon a judgment in a district court, issued of course, more than five years after the judgment was rendered, is not merely irregular, but void. An execution may be issued of course, at any time within five years after the entry of judgment; but after five years from the entry of judgment, no execution can be issued, without leave of the court, on motion, whether there has been an execution issued previous to that time or not. Proceedings in the nature of scire facias are no longer necessary.

37. On an allegation that the debt for which the judgment was obtained was fraudulently contracted, an execution against the person of the defendant cannot issue, unless it appears that the action was one in which the defendant might have been arrested. And this applies to actions commenced and judgments originally rendered in a district court, where transcripts have been filed in the court of common pleas.

38. (100 Q.) The rules which govern the issuing execution upon a judgment in a court of record, apply (except as specially provided), to executions upon judgments of district courts, after a transcript has been filed in the court of common pleas.

39. (101 Q.) The issuing of a second execution is not a waiver of supplementary proceedings commenced against the defendant, after the return of the first execution unsatisfied. A similar practice was authorized by the late court of chancery, after filing a creditor's bill.

40. (110 Q.) A constable, or any regular officer, is not bound to exhibit his authority or process, when he arrests a defendant; but a special deputy is thus bound. If a constable, or regular officer was bound to exhibit his authority, when demanded, his refusal would not constitute him a trespasser, if he could show that he had a regular legal process, at the time of the arrest.

41. (111 Q.) A constable cannot recover his fees upon an execution, where he has levied

upon property, and returned that it remains on his hands for want of buyers. To entitle him to his fees, hẹ must levy the money, except where he is prevented by the act of the plaintiff or by operation of law. In the former case he may recover his fees, though he have levied, only and not sold.

42. (112 Q.) No action can be sustained against a constable for not returning an execution which the plaintiff himself has directed and permitted to be renewed. If it is renewed on the constable's responsibility, and on good consideration, the action, if any will lie, should be assumpsit, not case for neglect in omitting to return it. An execution renewed ceases to be an original. If an execution be renewed on the constable's responsibility, before it has run out, such engagement of the constable, is nundum factum, and void.

43. (113 Q.) A constable is not entitled to fees for traveling to serve a criminal warrant, unless the service is actually made, though the party sought to be arrested cannot be found. It seems, the rule is universal that an officer is not entitled to fees for traveling to serve process unless the service is made.

44. (115 Q.) The provisions of the 59th section of the district court act are directory merely. If the clerk should neglect to make up his docket, the plaintiff in any suit or proceeding where it became necessary, could prove by other evidence the recovery of his judgment.

45. (127 Q.) The deputy clerk of a district court may properly take any affidavit autho rized to be taken by the clerk of that court.

CHAPTER III.

The Justices' Courts of Cities.

$67. Their jurisdiction.

The justices' courts of cities, shall have jurisdiction in the following cases, and no other:

1. In actions similar to those in which justices of the peace have jurisdiction, as provided by sections fifty-three and fiftyfour.

2. In an action upon the charter or by-laws of the corporations of their respective cities, where the penalty or forfeiture shall not exceed one hundred dollars.

CHAPTER IV.

General Provisions.

68. Sections 55 to 64 applied to the courts embraced in this title.

The provisions of sections fifty-five to sixty-four, both inclusive, relating to forms of actions, to pleadings, to the times of