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3. An action for a penalty not exceeding $100.

4. An action commenced by attachment of property, as now provided by statute, if the debt or damages claimed do not exceed one hundred dollars;

5. An action upon a bond, conditioned for the payment of money, not exceeding one 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 shall become due.

6. An action upon a surety bond taken by them; though the penalty or amount claimed exceed one hundred dollars.

7. An action on a judgment rendered in a court of a justice of the peace, or of a justice's or other inferior court in a city where such action is not prohibited by section 71.

8. To take and enter judgment on the confession of a defendant, where the amount confessed shall not exceed two hundred and fifty dollars, in the manner prescribed by article 8, title 4, chapter 2, of part 3, 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 one hundred dollars.

Note to subd., 1.

If the plaintiff state his demand at more than one hundred dollars, but claim damages only to one hundred, the justice has jurisdiction. So the plaintiff may sue on a demand exceeding one hundred dollars, and reduce it to the justice's jurisdiction by voluntary credits or deductions-Tuttle v. Muston, (1 John. Cas. 25; 12 Johns. R., 425. Bennett v. Ingersoll, 24 Wend., 113.) The plaintiff is not obliged, when he commences his suit to reduce his demand to $100, for that might give the defendant, if he has a set-off, an undue advantage. The parties may present and prove their demands as they are, and if a balance is found, exceeding the justice's jurisdiction, the excess may be remitted, and judgment taken for the residue. (Justice's Manual, 3d ed., 13.)

One indivisible contract, as a promissory note for $125, or the sale at one time of several barrels of pot-ashes, cannot be made the foundation of several suits, so as to recover part in one suit, and part in another. Only one suit can be brought on an entire contract. Justice's Manual, 3d ed., 13; 16 Johns. R., 121. Smith v. Jones, 15 ib., 229. This rule, however, is only applicable to hostile suits (Cornell v. Cook, 7 Cow., 310), for the parties may, by consent, divide a large demand into any number of smaller ones, and the defendant may confess separate judgments for each.

A justice has no jurisdiction where the sum total of the accounts of both parties, proved to the satisfaction of the justice, shall exceed four hundred dollars. But where accounts have been settled, the balance is the only subsisting account; and unless this balance and the subsequent accounts, exceed four hundred dollars, the justice has jurisdiction. (Code, Sec. 54, subd., 4; 2 Cow., 431.)

The superior court in Maguire v. Gallagher (2 Sand., S. C. R. 402; 1 Code Rep., 127), held that a judgment being an express contract of record, assistant justices and justices of the peace had jurisdiction of suits upon judgments, they being actions arising on contract; but the common pleas of the city and county of New York have

refused to acknowledge the authority of the case of Maguire v. Gallagher, and have decided that the 7th subdivision of this section (sect. 53) controls this subdivision (sub. 1), and that a justice's court in the city of New York has no jurisdiction of an action on a judgment of an assistant justice's court between the same parties, and brought without leave of the court first obtained. Mills v. Winslow, 3 Code Rep., 44 [see note to section 71. post]

Note to subd. 3.

The supreme court in Phillips v Sture (1 Code Rep., 58), held that an action to recover money lost at play is not an action for a penalty.

Note to subd. 4. See Attachment, in this code, section 228 Bennett v. Brown, (1 Code Rep. N. S., 267.)

Note to subd. 5. But the plaintiff cannot split one entire demand so as to bring it within this provision, 15 Johns. R., 229. 16 Johns. R., 121–136.

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Note to subd. 8. The code of 1848 had no provision corresponding to that contained in this subdivision; and it was therefore held that a judgment taken by confession by a justice of the peace for a sum exceeding $100, while the code of 1848 was in force, was a nullity. Daniels v. Hinkston, 5 Pr. R., 322; and now a judgment by confession for a sum exceeding $250 would be void, Griswold v. Sheldon, 1 Code Rep. N. S, 261.

Note to subd. 9. All this was added by the amendment in 1851.

The practitioner must bear in mind that no such confession can be taken or judgment rendered thereon, unless the following requisites be complied with : 1. The defendant must personally appear before the justice.

2. The confession must be in writing, signed by the defendant, and filed with the justice.

3. If the judgment be confessed for a sum exceeding fifty dollars, the confession shall be accompanied by the affidavits of the defendant and the plaintiff, stating that such defendant is honestly and justly indebted to the plaintiff in the sum named in such affidavit over and above all just demands which he has against him, and that such confession is not made or taken with a view to defraud any creditor.

Every judgment confessed without a compliance with these provisions will be void as against all persons, except a purchaser in good faith of any goods or chattels, lands or tenements, under such judgment, and except the defendant making such confession.

The personal appearance of the plaintiff before the justice upon a confession is not necessary, unless the judgment is for more than $50; and the want of such appearance cannot be taken advantage of by the defendant. If, however, the judgment is for a sum exceeding $50, it would be necessary that both parties should personally appear before the justice, to make the requisite affidavit. (Edw. Tr. 3d, ed. 118.)

But a creditor having a demand exceeding $50, may take from his debtor several confessions, each for a sum less than $50, to the full amount of his claim, and thus avoid the necessity of making the affidavit required by statute. Cornell v. Cook, 7 Cow., 310; 2 R. S., 342.

The confession must be for a specified sum. A judgment entered for such a sum as A. B. should award is bad, the confession being made before the award is declared; for a justice has no power to enter a confession for an uncertain and unliquidated amount. But a confession for the amount of a note described so as to be capable of being identified, or for a surn to be ascertained by calculation, would probably be good. Nicholls v. Hewitt, 4 Johns. R., 423.

The confession must also state how the indebtedness confessed, arose.

Form of Confession.-[Title of Action.] I hereby, pursuant to the statute, confess judgment in this action for dollars, the amount due the said plaintiff for money borrowed (or as the case may be), besides cost of suit; and consent that the said plaintiff enter judgment against me accordingly.

When judgment is confessed for a sum exceeding $50 it will be void as against all persons, except the defendant and purchasers in good faith under the judgment, unless the above mentioned affidavit is made. 2 R. S., 342, ss. 115, 116.

As the affidavit must expressly refer to the confession, the most convenient practice is to subjoin or annex it to the confession.

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Form of Affidavit.-Town of John Doe and Richard Roe, both of [insert residences and occupations of deponents] the parties named in the above [or] annexed confession of judgment, being respectively sworn, say, and each for himself says, that the said Richard Roe is honestly and justly indebted to the said John Doe, in the sum of dollars, over and

above all just demands, which the said Richard Roe has against the said John Doe ; and that said confession of judgment is not made or taken with a view to defraud any creditor.

If there is more than one plaintiff or defendant, the affidavit should, in strictness, be made by all of them.

Actions cognizable before a justice may be brought against all town and county officers, (2 R. S., 325, s. 6), individually specifying in the process and proceedings, their name of office; and such actions may be commenced in the same manner as against individuals. (2 R. S., 569.) Corporations may sue and be sued in justices' courts-Const., art. viii., s. 3, and which also defines what is meant by the word corporations. Laws of 1847, p. 646, s. 45 amend the 5th subd. of s. 4, tit. 4, cap. 2, part 3 of the revised statutes, by striking out the words "or against corporations," and enact that

Process against corporations may be issued as in other cases, and may be served on the presiding officer, secretary, cashier, treasurer, or any director or trustee thereof, by whatever name such director or trustee may be called; and although a justice has no jurisdiction of a suit against a foreign corporation, such corporation may confer jurisdiction by appearing and answering without objecting to the jurisdiction. Paulding v. Hudson Manuf. Co. 3 Code Rep. 223.

Counties and towns are corporations. An action against a county must be brought against its supervisors; and process must be served upon the chairman or elerk of the board. An action against a town must be brought against it by its name, (2 R. S., 569, s. 109); where, however, county and town officers are authorized by law to sue by their name of office, suits may be brought by and against such officers. (1 R. S., 376.)

A justice has jurisdiction of every person found in the county, whether a resident or not. Every action, however, must be brought before some justice of the town wherein either,

1. The plaintiffs, or one of them, reside; or

2. Where the defendants, or one of them, reside; or

3. Before some justice of another town, in the same county, next adjoining the residence of the plaintiff or defendant. (2 R. S., 325, s. 9.) Except that where the defendant has absconded from his residence, the action may be brought before a justice of the town in which such defendant or his property may be, and

If the plaintiffs be all non-residents of the county, or the defendant be a non-resident of the county, then such action may be brought before any justice of the town in which such plaintiffs or defendant may be. (2 R. S., 326, s. 10.)

§ 54. [47.] No jurisdiction in certain cases.-But no justice of the peace shall have cognizance of a civil action

1. In which the people of this State are a party, excepting for penalties not exceeding one hundred dollars:

2. Nor where the title to real property shall come in question, as provided by sections 55 to 62, both inclusive:

3. Nor of a civil action for an assault, battery, false imprisonment, libel, slander, malicious prosecution, criminal conversation, or seduction:

4. Nor of a matter of account, where the sum total of the accounts of both parties, proved to the satisfaction of the justice, shall exceed four hundred dollars:

5. Nor of an action against an executor or administrator as such.

Note to subd. 3.—A justice of the peace has jurisdiction to try an action of trespass on the case for wilfully neglecting or refusing to issue an execution on a judgment recovered before the defendant as a justice of the peace. Van Vleek v. Burroughs, 6 Barb. S. C. R., 341.

Note to subd. 4.-When such proof is made, he is, thereupon, required to enter a judgment of discontinuance against the plaintiff, with costs. 2 R. S., 333, s. 55; 10 Wend., 559. See section 304, sub. 3 of this code.

The matters of account must be open and unliquidated, (2 Cow., 413); thus, if the plaintiff should prove a claim of $300, and the defendant payment on account of $250, the justice must give judgment for the balance. Ib. But if instead, the defendant had proved a set-off to the amount of $250, the justice must have dismissed the complaint. (10 Wend., 555, 557.)

Note to subd. 5.-Executors and administrators may sue, but cannot be sued, in a justices' court; and if they sue, the defendant may plead a set off if he have one, and if he prevail, may have judgment against such plaintiffs in their representative character, which will be evidence of a debt established, to be paid in the course of administration. (2 R. S., 333, s. 57.)

55. [48.] Answer of Title.-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 defence, 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.

This and the following sections relating to this subject, are taken with some slight modification from 2 R. S. 231, 257, ss. 59 to 66.

It is presumed, notwithstanding this provision, that upon the delivery of the undertaking the action shall be discontinued. A discretion is vested in the justice to decide whether the matter of defence set forth in the answer does in fact show that title will come in question, and that if he is of opinion that the answer tendered does not show that title will come in question, he may proceed in the action.

If such a discretion is vested in the justice, it becomes material to inquire when it will be considered that title comes in question.

See Cowen's treatise on justices' courts, vol. 1, pp. 463 to 469, and vol. 2, pp. 272, 273, as to when it may be said that title comes in question.

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." Launitz v. Barnum, 4 Sand. S. C. R., 637. To set up a license to do an act on real estate, is a very different thing from a claim of title. (See 18 Wend., 579).

In an action of trespass for entering and taking away rock and stone from plaintiff's land, where the defendant by his answer admits the plaintiff's title, and alleges that he entered pursuant to a contract by which he was to blast and remove the rock to enable the plaintiff to erect houses on the land, and was to have the rock as part of his compensation, it was held that a claim of title to real property did not arise, O'Reilly v. Davies, 4 Sand. S. C. R., 722.

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.

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

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.

An answer setting up an entry and claim to land under an executor's contract for sale, was held not to constitute a claim of title. Dolittle v. Eddy, 7 Barb. S. C. R., 75.

§ 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.

The amendment to this section was the insertion of the word "county" for the word "supreme."

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. 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. Ib.

Under the code of 1848, sec. 49, which was identical with sec. 56 of the code of 1849, the question arose whether in the action commenced in the supreme court, it was necessary or proper for the plaintiff to put in a reply; and it was held that a reply was necessary. Royce v. Brown, 3 Pr. R. 391. But

It was subsequently held under the code of 1849, that the case of Royce v. Brown was not applicable to that code; and now where title is set up in a justice's court by answer, and a new suit is instituted in the county court for the same cause, a reply on the part of the plaintiff is not necessary, and if put in will be struck out on motion, McNamara v Bitely, 2 Code Rep. 42. 4 Pr. R. 44.

The reason assigned for the decision was the different rules of pleading which prevailed under the codes of 1848 and 1849; as under the code of 1849 a reply in a justice's court was not necessary in any case. Now no reply is necessary.

It seems, that the summons or complaint, or both, in such a suit, should allude to the suit before the justice by some appropriate averment. Ib.

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