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; but it is thought that it should state a consideration on its face for the making thereof, that it should state the place of residence of the surety, and be acknowledged by him. The surety must justify to the amount of $200. It does not appear to be necessary to insert the extent of the surety's liability, as that is fixed by the statute.

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 Smail Causes, 192.

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.

The following forms are recommended to be used:

I, A. B. [name and residence of surety] in consideration that this action, before [insert name of justice] be discontinued, hereby undertake, that if the above-named plaintiff, within thirty days after this undertaking be approved by the said justice, shall deposit with the said justice a summons 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 after 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.

-88. 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.

57. [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 to this section 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.

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.

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. 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. S. C. R., 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.

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."

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, per Willard, J., in McNamara v. Bitely, 4 Pr. R., 44, and the plaintiff eannot amend his answer in the county court, of course. Cusson v. Whalon, 1 Code Rep. N. S., 27. But might 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 pleadings 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.

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 Wend., 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 Com. 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 suit brought for the same cause in the county court is an action originally commenced in such county court, and not a suit originally commenced in a court o

a justice of the peace. Hyland v. Loomis, 3 Pr. R., 223. For the importance of this distinction, in case of appeal, see section 11; and see note to sections 56 and 62.

The case of Hyland v. Loomis seems, however, to be opposed to and overruled by the case of Brown v. Brown, 6 Pr. R., 320. In that case it was held by the court of appeals, that that court had no jurisdiction of a suit commenced before a justice of the peace and discontinued by reason of title interposed, and a suit for the same cause of action commenced in the (late) common pleas or (now) supreme or county court, and appealed to the court of appeals. In Kiddle v. De Groot, 1 Code Rep., N. S., 202, it was held that in actions commenced in the supreme court after discontinuance by reason of title to land coming in question in a justice's court, where the defendant sets up title to land as a defence, the plaintiff might reply to the answer. To the same effect is the decision in Jewett v. Jewett, 6 Pr. R., 185. The point has lost some of its importance by reason of a reply being now unnecessary in any action except in cases where a counterclaim is set up in the answer.

§ 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.

The amendments of 1851, to sections 60, 61, and 62, consisted merely in 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.

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.

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 judgment is revived; and the lien ceases with the right of the judgment creditor to maintain a suit upon it. Young v. Remer, 4 Barb. S. C. R., 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 judgments of courts not of record are limited to six years. Ib. Is the time for bringing an action now limited by the 90th section of this code?

In Scott v. Loomis, 13 Sme. & M, 635, a justice's docket was held not to be a record in the strict technical sense of that term; and see 3 Barb. S C. R., 397. See further, note to section 68 of this code.

§ 64. [57.] (Amended 1849, 1851, 1852.) Rules.—The following rules shall be observed in the courts of justices of the

peace.

1.

The pleadings in these courts are: 1. The complaint by the plaintiff; 2. The answer by the defendant.

2.

The pleadings may be oral, or in writing; if oral, the substance of them shall be entered by the justice in his docket; if in writing, they shall be filed by him, and a reference to them shall be made in the docket.

3.

The complaint shall state, in a plain and direct manner, the facts constituting the cause of action.

4.

The answer may contain a denial of the complaint, or of any part thereof, and also notice in a plain and direct manner, of any facts constituting a defence.

5.

Pleadings are not required to be in any particular form, but must be such as to enable a person of common understanding to know what is intended.

6.

Either party may demur to a pleading of his adversary, or any part thereof, when it is not sufficiently explicit to enable him to understand it, or it contains no cause of action or defence, although it be taken as true.

7.

If the court deem the objection well founded, it shall order the pleading to be amended, and if the party refuse to amend the defective pleading shall be disregarded.

8.

In case a defendant does not appear and answer, the plaintiff cannot recover without proving his case.

9.

In an action or defence founded upon an account or an instrument for the payment of money only, it shall be sufficient for a party to deliver the account or instrument to the court, and to state that there is due to him thereon from the adverse party a specified sum, which he claims to recover or set off.

10.

A variance between the proof on the trial, and the allegations in a pleading, shall be disregarded as immaterial, unless the court shall be satisfied that the adverse party has been misled to his prejudice thereby.

11.

The pleadings may be amended at any time before the trial, or during the trial, or upon appeal, when by such amendment substantial justice will be promoted. If the amendment be made after the joining of the issue, and it be made to appear to the satisfaction of the court, by oath, that an adjournment is