a. Where the possession of wild land is put in issue, the title is also in issue, because the plaintiff to show possession must prove his title. Ib.

b. Title embraces the right to the possession, and every thing but the bare naked possession. Ehle v. Quackenboss, 6 Hill, 537.

c. Where a plaintiff in his complaint averred the ownership and possession of a piece of land, and alleged an entry thereon by the defendant, with teams and ploughs, and the ploughing up and destroying the shrubbery, vines, and trees growing thereon, and the defendant in his answer alleged, that he entered and took the vines, &c., by virtue of an agreement made between the plaintiff and the defendant for the sale of the premises by the defendant to the plaintiff, containing certain reservations, &c. it was held, that under this issue the title to land came in question. Powell v. Rust, 1 Code Rep., N. S., 172.

d. An answer setting up an entry and claim to land under an executory contract for sale, was held not to constitute a claim of title. Dolittle v. Eddy, 7 Barb., 75. e. Where in a justice's court title to real estate is not pleaded, the justice is not ousted of his jurisdiction because it may be necessary to prove title in order to sustain the action, unless such title is disputed by the defendant. Bellows v. Sackett, 15 Barb., 97.

f. In an action in a justice's court for obstructing a right of way, the defendant answered a general denial. On the trial the defendant proved the plaintiff had the right of way, subject to certain restrictions; held, the title to real estate was not in question so as to oust the justice of jurisdiction. Hastings v. Glenn, 1 Smith, 402.

g. The question of title to land is in all cases a question of ownership. The question of title 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 inchoate right of dower in the wife of the defendant was a subsisting incumbrance; and in such an action if the plaintiff recovers only nominal damages the defendant is entitled to full costs. Smith v. Riggs, 2 Duer, 622.

h. In an action for killing plaintiff's cows, the answer set up, that the Harlem Railroad Company being possessed of a tract of land in the centre of the Fourth avenue, between 115th and 125th streets, twenty-four feet in width, granted the defendants permission to run their engine and cars over a railway laid down on the said track, and that the cows being unlawfully upon said track, were killed by the engine of the defendants, while lawfully running upon said track. The question was raised, whether title came in question, but, per Daly, J.: The issue in this case involved no inquiry as to title. Whether it constituted any defence or not, it was simply setting up a possession in the centre of the street, or in that part of it upon which the railway was laid. Title is defined by Blackstone to be the means whereby the owner of lands hath the just possession of his property (2 Com., 195), and does not come in question when the only matter in dispute is the fact of possession. Hence, where the thing in controversy between the parties is the mere possession, or priority of possession, it is a matter which a justice may try. (Griffith's. Treatise, 18, 19, and 20.) Mr. Justice Cowen suggests, in his treatise, that the title comes in question in an action of trespass, where the plaintiff's possession is denied and litigated by the defendant; but we have had occasion to decide the question in this court, and have held the contrary in Brady against Mulligan and wife, May term, 1853. Longhurst v. New York and New Haven R. R. Co., in the New York Common Pleas, General Term, July, 1853, Daly and Woodruff, JJ.

i. Where a party is charged with a liability arising out of his being owner of land, and he disclaims being the owner of that land, this raises a question of title. Regina v. Hardon, 22 Law Jour. Rep. (N. S.), Q. B, 299; 18 Eng.-Law and Eq. R. 403.

See note to section 304, post.

§ 56. [49.] (Amended 1851.) Undertaking to be given. At the time of answering, the defendant shall deliver to the justice a written undertaking, executed by at least one sufficient surety, and approved by the justice, to the effect, that if the

plaintiff shall, within thirty days thereafter, deposit with the justice a summons and complaint in an action in the county court for the same cause, the defendant will, within ten days after such deposit, give an admission in writing of the service thereof.

Where the defendant was arrested in the action before the justice, the undertaking shall further provide, that he will, at all times, render himself amenable to the process of the court during the pendency of the action, and to such as may be issued to enforce the judgment therein. In case of failure to comply with the undertaking, the surety shall be liable, not exceeding one hundred dollars.

a. The amendment was the insertion of the word "county "supreme."

" for the word

b. Where a defendant omitted, within the prescribed time, to admit service of a summons and complaint deposited by the plaintiff with a justice of the peace in pursuance of this section, and upon the plaintiff bringing an action upon the undertaking of the defendant, deposited with the justice, the defendant moved in the supreme court for leave to admit service of the summons and complaint, and to stay plaintiff's proceedings on the undertaking,-held, that the court had no power to grant such relief. There was no action pending until the service of the summons (s. 137); consequently the court had no jurisdiction. Davis v. Jones, 3 Code Rep., 63; 4 Pr. R., 340.

c. It seems that it is not necessary for the plaintiff to give notice to the defendant of the deposit of the summons and complaint with the justice; but the defendant is bound to ascertain for himself the fact of the same having been deposited, at the peril of losing his right to answer. 16.

d. Where a defendant fails to comply literally with the terms of an undertaking filed under this (56th) section, by omitting to give the written admission of service of the summons and complaint, but puts in his answer in the supreme court, and the plaintiff accepts it without such admission, held a substantial performance of the undertaking, and that the waiver does not affect the identity of the suits before the justice and in the supreme court. Wiggins v. Tallmadge, 7 Pr. R., 404.

e. It does not seem necessary, or proper, that the defendant should join in the undertaking, nor does it seem necessary that the undertaking should be under seal, nor state any consideration, but it should state the place of residence of the surety, and be acknowledged by him. The surety must justify to the amount of $200. Thompson v. Blanchard, 3 Coms., 335.

f. The undertaking when approved, would, it is presumed, remain in the custody of the justice, although it has been said that the justice may deliver it to the plaintiff. Pennington on Small Causes, 192.

g. Although section 423 of the code, and rule 72 of the rules of the supreme court, may not in strictness be said to govern the practice in justice's courts, it is probable those courts will conform to the practice prescribed by that section and that rule, as nearly as can be. Perhaps, therefore, in case of two actions and two undertakings with the same surety in each, such surety would have to justify to the amount of $400. Anon., 4 Pr. R., 414.

I, A. B. [name and residence of surety] hereby undertake, that if the abovenamed plaintiff, within thirty days after this undertaking be approved by the abovenamed justice, shall deposit with the said justice a suinmons and complaint, in an action in the county court for the same cause of action as the cause of action in this action, that then the above-named defendant shall, within ten days of such deposit, give an admission in writing of the service of the said summons and complaint. [Dated, signed, and acknowledged.]

Where the defendant was arrested in the action before the justice, add after the word "complaint" "and that the said defendant will at all times render himself amenable to the process of the court during the pendency of such action, and to such process as may be issued to enforce the judgment therein."

Form of justification of surety, to be subjoined or endorsed.

-ss. A. B. [name of surety], the surety named in the above [or, within] written undertaking, being duly sworn on his oath says, that he is worth $200 over and above all debts and responsibilities he owes or has incurred, and over and above his property exempt by law from execution.

See note to section 60.

857. [50.] (Amended 1851.) Action discontinued. Costs. Upon the delivery of the undertaking to the justice, the action before him shall be discontinued, and each party shall pay his own costs. The costs so paid by either party shall be allowed to him, if he recover costs in the action to be brought for the same cause in the county court. If no such action be brought within thirty days after the delivery of the undertaking, the defendant's costs before the justice may be recovered of the plaintiff.

The amendment was the substitution of the word "county" for the word "supreme."

§ 58. [51.] If undertaking not given.

If the undertaking be not delivered to the justice, he shall have jurisdiction of the cause, and shall proceed therein; and the defendant shall be precluded, in his defence, from drawing the title in question.

59. [52.] (Amended 1849.) The same.

If, however, it appear on the trial, from the plaintiff's own showing, that the title to real property is in question, and such title shall be disputed by the defendant, the justice shall dismiss the action, and render judgment against the plaintiff for the costs.

a The law was the same before the code (2 R. S. 237, s. 63), per Willard, J., in McNamara v. Bitely, 4 Pr. R., 44, and see note to section 55 of this code.

b Where it appears on the trial, from the plaintiff's own showing, that the title to real property is in question, and such title shall be disputed, the parties, by consenting that the justice shall adjudicate on the disputed title, do not confer jurisdiction. Stryker v. Mott, 6 Wend., 465; and see Powell v. Rust, 1 Code Rep., N. S., 172. c But to entitle a defendant to a dismissal, he must call the justice's attention specifically to the objection, by at least disputing the title of the plaintiff. Brown v. Scofield, 8 Barb., 239.

§60. [53.] (Amended 1851.) Another action may be brought.

When a suit before a justice shall be discontinued by the delivery of an answer and undertaking, as provided in sections fifty-five, fifty-six, and fifty-seven, the plaintiff may prosecute an action for the same cause in the county court, and shall complain for the same cause of action only, on which he relied before the justice; and the answer of the defendant shall set up the same defence only which he made before the justice.

a. The amendment is the substitution of the word "county" for the word " supreme," and the words" shall set up the same defence only" for the words "shall be the same."

b. On a new action being brought, this section obviously contemplates that the complaint and answer shall be as before the justice, without any further or additional pleading, (McNamara v. Bitely, 4 Pr. R., 44,) and the plaintiff cannot amend his answer in the county court, of course. (Cusson v. Whalon, 1 Code Rep. N. S., 27.) But may it not be amended by leave of the court? In Wendell v. Mitchell, 5 Pr. R., 424, Hand, J., says; a party may put his proceedings below in proper form after removal, or however inartificially drawn the court may treat them as in proper form; but they cannot be amended in matters of substance.

c. If the plaintiff complains for a different cause of action, or the defendant sets up a different defence in his answer from that used before the justice, the proper remedy of the adverse party is by motion to strike out the pleading, and require it to be conformed to that in the court below. (Brotherson v. Wright, 15 Wend., 240; Tuthill v. Clarke, 11 ib., 642.) But while the plaintiff is restricted to the same cause of action, the restriction does not extend to matters of form; and his complaint in the county court may be in a form adapted to that court, although it may differ from the form of his complaint before the justice. The test is, does it state the same cause of action? (People v. Albany Čom. Pleas, 19 Wend., 123.) A similar rule, it is apprehended, will apply to the answer, and that if it state the same ground of defence a mere difference in form between it and the answer before the justice will not invalidate it. See, per Hand, J., in Wendell v. Mitchell, supra. The defendant may abandon part of his defence before the justice, when he comes to answer in the supreme court, and yet the defence be the same within the meaning of the statute. Wiggins v. Talmadge, 7 Pr. R., 404.

d. The suit brought for the same cause in the county court is an action originally commenced in a court of a justice of the peace. Brown v. Brown, 6 Pr. R., 320; Pugsley v. Kesselburgh, 7 Pr. R., 402; Wiggins v. Talmadge, ib., 404.

e. An affidavit in support of a motion to dismiss an appeal from a judgment of the supreme court, because the suit was originally commenced in a court of a justice of the peace, must show the justice was ousted of jurisdiction by the filing an undertaking required by section 56, as well as by the plea of title. Lalliette v. Van Keuren, 7 Pr. R., 409.

§ 61. [54.] (Amended 1851.) Costs.

If the judgment in the county court be for the plaintiff, he shall recover costs; if it be for the defendant, he shall recover costs, except that upon a verdict he shall pay costs to the plaintiff, unless the judge certify that the title to real property came in question on the trial.

The amendment was the substitution of the word "county" for the word "supreme"

As to the mode of entering judgment, see section 274 of this code.

§ 62. [55.] (Amended 1849, 1851.) Answer of title as to one cause of action.

If, in an action before a justice, the plaintiff have several causes of action, to one of which the defence of title to real property shall be interposed, and as to such cause the defendant shall answer and deliver an undertaking, as provided in sections fifty-five and fifty-six, the justice shall discontinue the proceedings as to that cause, and the plaintiff may commence another action therefor in the county court. As to the other causes of action, the justice may continue his proceedings.

a. The amendments of 1851, to sections 60, 61, and 62, were the substitution, in each section, of the word "county" for the word "supreme."

§ 63. [56.] (Amended 1849.) Docketing justices' judgments, and effect thereof.

A justice of the peace, on the demand of a party in whose favor he shall have rendered a judgment, shall give a transcript thereof, which may be filed and docketed in the office of the clerk of the county where the judgment was rendered. The time of the receipt of the transcript by the clerk shall be noted thereon, and entered in the docket; and, from that time, the judgment shall be a judgment of the county court. A certified transcript of such judgment may be filed and docketed in the clerk's office of any other county, and with the like effect, in every respect, as in the county where the judgment was rendered; except that it shall be a lien only from the time of filing and docketing the transcript. But no such judgment for a less sum than twenty-five dollars, exclusive of costs, hereafter docketed, shall be a lien upon, or enforced against real property.

b. So much of this section as relates to the filing a transcript in a county other than that in which the judgment was rendered, is taken from Laws of 1845, p. 263; the former part of the section is from 2 R. S., 344, s. 129.

c. A judgment rendered in a justice's court acquires no additional validity by being transcribed and docketed in the office of the county clerk, except that it then becomes a lien upon the real estate of the judgment debtor. Nothing is added to its period of existence as a judgment. The lien of such a judgment continues only six years, unless the judginent is revived; and the lien ceases with the right of the judgment creditor to maintain a suit upon it. Young v. Remer, 4 Barb., 442. The provisions of the Revised Statutes (2 R. S., 202, s. 3), making a judgment a lien ten years from the time of docketing, applies only to judgments of courts of record, and not to judgments in justices' courts. Ib. and Johnson v. Burrill, 2 Hill, 238. Justices' judgments are within 2 R. S., 224, s. 18, subd. 2; by which actions on judg. Ib. ments of courts not of record are limited to six years.

d. Is the time for bringing an action now limited by the 90th section of this code ?

See further, note to section 68, post.