county treasurer of the county of Kings, on the certificate of the clerk of the said city court.

SECS. 11 and 12 relate exclusively to the criminal jurisdiction. of the court.

SEC. 13 [Anended by laws of 1850, p. 149, § 6.] The said court shall be held once in each month, and shall commence on the first Monday thereof, and may be continued for four weeks. The terms of the said court held in the months of May, July, September, November, January, and March, in each and every year, shall be devoted exclusively to the transaction of civil business, and trials in civil cases; and the trials held in the months of June, August, October, December, February, and April, shall be exclusively devoted to the transaction of criminal business and trials in criminal cases.

SEC. 22. The fees to be allowed and paid to the attorneys and counsellors of the said court, and the costs to be allowed and recovered in civil suits and proceedings therein, shall be the same costs and fees as are allowed and recovered for similar services in the supreme court.

See the Code, § 303-322, both inclusive.

Can this court make an allowance in addition to the costs!

SEC. 23. The said city judge may constitute a member of any court of oyer and terminer to be held in and for the county of Kings, and for that purpose shall possess all the powers and authority of a judge of the county court.

SEC. 26. The said city judge shall have all such power and authority at chambers, touching any suit or proceeding in said city court, as the respective justices of the supreme court, from time to time shall be authorized to exercise touching like suits or proceedings in the supreme court. He may also exercise within the county of Kings all the powers of a justice of the supreme court at chambers; and perform all such duties and do all such acts as might have been done or performed by the laws in force on the 12th of May, 1847, by the judges of the court of common pleas, or by any one or more of them at chambers or otherwise when not holding court, or by any such judge being of the degree of counsellor of the supreme court, and acting as a supreme-court commissioner.

The 12th of May, 1847, the date mentioned in the last section, is the date of the passage of the judiciary act of 1847. The like powers as are given to the city judge by this section are given to county judges by the amended judiciary act. Laws of 1847, p. 643, § 27.

The following were the powers and duties of the supreme-court commissioners (2 R. S., 4 ed., 468.)

SEC. 14. [18.] Supreme-court commissioners duly appointed according to law, shall severally be authorized and required to perform all the duties, and to execute every act, power and trust, which a justice of the supreme court may perform and execute, out of court, according to the rules and practice of such court, and pursuant to the provisions of any statute, in all civil cases, except as herein otherwise provided.

SEC. 15. [19.] But where any power is given in express terms by any statute to the justices of the supreme court and the circuit judges, or either of them, without naming supreme-court commissioners in such statute, such commissioners shall not be authorized to exercise any such power.

SEC. 16. [20.] No such commissioner shall be authorized to grant any order to stay proceedings in any cause in which a verdict shall have been rendered.

SEC. 17. [21.] No supreme-court commissioner shall grant any order to stay proceedings on any capias ad respondendum, or on any other attachment.

SEC. 18. [22.] Where an execution shall have been issued, an order to stay proceedings thereon, granted by a supreme-court commissioner, shall not prevent a levy on property by virtue of such execution, but shall only suspend a sale thereon until the decision of the supreme court upon the matter.

SEC. 18. [23.] Nor shall any such commissioner grant any order to stay proceedings on any execution against the body of a defendant, unless such defendant shall have executed to the plaintiff, and delivered to such commissioner, a bond for the use of such plaintiff, in a penalty double the amount required, to be collected by such execution, with two sufficient sureties, who shall swear that they are each worth the amount of such penalty over and above all debts; conditioned that such defendant shall be found within the county to which such execution was directed, so as to be arrested upon any execution that may be issued against his body, on the same judgment, within six months from the date of such bond.

SEC. 20. [24.] Such bond shall be filed by the commissioner, in the office of a clerk of the supreme court, within 20 days after the same shall have been taken, and shall be delivered by such clerk to the plaintiff whenever the condition thereof shall be broken.

SEC. 21. [25.] In every order to stay proceedings on an execution against the body of a defendant, shall be stated the fact of a bond having been given as required by this title; and if not so stated, such order shall be void.

SEC. 22. [26.] Where the supreme court shall have made any order in reference to a matter, such order shall not be suspended, or in any manner affected, by any order granted by a supreme-court commissioner.

SEC. 23. [27.] If any application for any order be made to any justice of the supreme court, circuit judge, or supreme-court commissioner, and such order be refused in whole or in part, or be granted conditionally, or on terms, no subsequent application in reference to the same matter and in the same stage of the proceedings shall be made to any other supreme-court commissioner; and if upon any such subsequent application any order be made by a

supreme-court commissioner, it shall be revoked by such commissioner, or by any justice of the supreme court, or circuit judge, upon due proof of the facts. (4 Hill, 556.)

SEC. 24. [28.] Every person making such subsequent application contrary to the foregoing provision, with knowledge of any previous application and refusal, shall be liable to be punished by fine and imprisonment by the supreme court, and shall be proceeded against as prescribed in title 13th of the 8th chapter of this act.

SEC. 25. [29.] No supreme-court commissioner shall be authorized to grant any order on the application of any attorney, counsellor, or party, residing more than 40 miles from the residence of such commissioner, if there be an officer authorized to grant such order, residing within 40 miles of the applicant therefor.

SEC. 26. [30.] No supreme-court commissioner having a law-partner in whose name the business of the copartnership shall be carried on, shall be competent to perform any act authorized in this title in any suit or proceeding in which such partner shall be in anywise interested.

SEC. 27. [31.] The supreme court shall have power by general rules to prescribe any other cases in which supreme-court commissioners shall not be authorized to grant any orders in relation to suits pending in such court, and to prescribe the terms and conditions on which orders may be granted in any specified class of cases, and also by order in any particular case to forbid the interference of any such commissioner.

§ 39, p. 45.

See supplemental note to section 28, page 21, ante.

§ 51, p. 47.

See supplemental note to section 28, page 21, ante.

§ 52, p. 48.

In Smith v. Joyce, 12 Barb. S. C. R., 21, the supreme court at general term, Willard, Hand, and Cady, JJ., held that the summons in justices' courts need not express the plea, as required by the revised statutes, and that the case of Ellis v. Merritt, had been frequently disregarded. Cornell v. Bennett, 11 Barb. S. C. R., 657; Park v. Hitchcock, in note.

§ 53, p. 5.

Note to subd. 2.

A justice of the peace has no jurisdiction of an action for taking and converting personal property, where the plaintiff in his complaint claims judgment for $200; and in such a case, a judgment in favor of the plaintiff will be reversed, after a trial upon the merits without objection. Bellinger v. Ford, 14 Barb. S. C. R., 250.

§ 54, p. 52.

Note to subd. 2.

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. C., in the New York Common Pleas, General Term, July, 1853, Daly and Woodruff, JJ.

§ 56, p. 54.

It is said in the note, "but it is thought that it (the undertaking) should state a consideration on its face for the making thereof." On reference, however, to Thompson v. Blanchard, 3 Coms., 335, it will be observed that it was held by the court (Bronson, J. dissenting), that, where a statute requires an undertaking to be entered into by sureties an instrument containing the requisite stipulations is valid, although it does not express a consideration, and is not under seal.

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.

§ 60, p. 55.

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. Tallmadge, 7 Pr. R., 404.

If an appeal is brought from a judgment in an action originally commenced in a court of a justice of the peace, the court, on motion, will dismiss such appeal. But where, on a motion to dismiss an appeal because the action was originally commenced in a court of a justice of the peace, the affidavit in support of the motion stated, "that the action was originally commenced in a justice's court, where the plaintiff declared in trespass for breaking and entering the plaintiff's premises, and the defendant, by answer, claimed title to the locus in quo; that, thereupon, the justice discontinued the action, and the same was commenced in the supreme court, according to the statute in such case made and provided; and the said action was tried in the supreme court, upon the same pleadings substantially as were interposed in the justice's court; and that judgment was entered in the said action in the said supreme court in favor of the plaintiff ;"-the court dismissed the appeal, and said the affidavit was "fatally defective in not showing that the justice of the peace was ousted of his jurisdiction by giving the undertaking required by the code (§ 56). This suit cannot be regarded as a continuation of