5. An action upon bond conditioned for the payment of money, not exceeding two 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 becomes due.

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

7. An action upon a judgment rendered in a court of justice of the peace, or by a justice 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 five hundred 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 two hundred dollars.

10. An action to recover the possession of personal property claimed, the value of which as stated in the affidavit of the plaintiff, his agent or attorney, shall not exceed the sum of one hundred dollars.

The plaintiff in such action, at the time of issuing the summons, but not afterwards, may claim the immediate delivery of such property as hereinafter provided.

Before any process shall be issued in an action to recover the possession of personal property, the plaintiff, his agent or attorney, shall make proof by affidavit, showing:

1. That the plaintiff is the owner, or entitled to immediate possession, of the property claimed, particularly describing the

same.

2. That such property is wrongfully withheld or detained by the defendant.

3. The cause of such detention or withholding thereof, according to the best knowledge, information and belief of the person making the affidavit.

4. That said personal property has not been taken for any tax, fine, or assessment, pursuant to statute, or seized by virtue of an execution or attachment against the property of said plaintiff; or if so seized, that it is exempted from such seizure by statute. 5. The actual value of said personal property.

On receipt of such affidavit, and an undertaking, in writing, executed by one or more sufficient sureties, to be approved by the justice of the peace before whom such action is commenced, to the effect that they are bound in double the value of such property as stated in said affidavit for the prosecution of said action, and for the return of said property to the defendant, if return thereof be adjudged, and for the payment to him of such sum as may for any cause be recovered against said plaintiff, the justice shall endorse upon said affidavit a direction to any constable of the county in which said justice shall reside, requiring said constable to take the property described therein from the defendant, and keep the same, to be disposed of according to law; and the said justice shall at the same time issue a summons directed to the defendant, and requiring him to appear before said justice at a time. and place to be therein specified, and not more than twelve days from the date thereof, to answer the complaint of said plaintiff; and the said summons shall contain a notice to the defendant that in case he shall fail to appear at the time and place therein mentioned, the plaintiff will have judgment for the possession of the property described in said affidavit, with the costs and disbursements of said action.

The constable to whom said affidavit, endorsement, and summons shall be delivered, shall forthwith take the property described in said affidavit, if he can find the same, and shall keep the same in his custody. He shall thereupon, without delay, serve upon said defendant a copy of such affidavit, notice and summons, by delivering the same to him personally, if he can be found in said county; if not found, to the agent of the defendant in whose possession said property shall be found; if neither can be found, by leaving such copies at the last or usual place of abode of the defendant, with some person of suitable age and discretion. And shall forthwith make a return of his proceedings thereon, and the manner of serving the same, to the justice who issued the said

summons.

The defendant may at any time after such service, and at least two days before the return day of said summons, serve upon plain. tiff or upon the constable who made such service, a notice in writing that he excepts to the sureties in said bond or undertaking, and if he fail to do so, all objection thereto shall be waived. If such notice be served, the sureties shall justify, or the plaintiff

give new sureties on the return day of said summons, who shall then appear and justify, or said justice shall order said property delivered to defendant, and shall also render judgment for defendant's costs and disbursements.

At any time before the return day of said summons, the said defendant may, if he has not excepted to the plaintiff's sureties, require the return of said property to him, upon giving to the plaintiff, and filing same with the justice, a written undertaking, with one or more sureties, who shall justify before said justice on the return day of said summons, to the effect that they are bound in double the value of said property, as stated in plaintiff's affidavit, for the delivery thereof to said plaintiff if such delivery be adjudged, and for the payment to him of such sum as may for any cause be recovered against said defendant; and if such return be not required before the return day of said summons, the property shall be delivered to said plaintiff.

The qualification of sureties and their justification under this act, shall be the same as provided in sections one hundred and ninety-four and one hundred and ninety-five of the code, in respect to bail on arrest in the supreme court.

Sections two hundred and fourteen, two hundred and fifteen, and two hundred and sixteen of the code, shall apply to proceedings and actions brought under this act, substituting the word constable for the word sheriff whenever it occurs in either of said sections.

The actions so commenced shall be tried in all respects as other actions are tried in justices' courts.

The judgment for the plaintiff may be for the possession, or for the recovery of the possession, or the value thereof, in case a delivery cannot be had, and of damages for the detention. If the property have been delivered to the plaintiff, and the defendant claim a return thereof, judgment for the defendant may be for a return of the property, or the value thereof in case a return cannot be had, and damages for taking and withholding the same. An execution shall be issued thereon, and if the judgment be for the delivery of the possession of personal property, it shall require the officer to deliver the possession of the same, particularly describing it, to the party entitled thereto, and may at the same time require the officer to satisfy any costs or damages recovered by the same judgment out of the personal property of the party against whom it was rendered, to be specified therein, if a delivery thereof

cannot be had. The execution shall be returnable within sixty days after its receipt by the officer, to the justice who issued the

same.

In all actions for the recovery of the possession of personal property, as herein provided, if the property shall not have been delivered to plaintiff, or the defendant by answer shall claim a return thereof, the justice or jury shall assess the value thereof, and the injury sustained by the prevailing party by reason of the taking or detention thereof, and the justice shall render judgment accordingly, with costs and disbursements.

If it shall appear by the return of a constable that he has taken the property described in the plaintiff's affidavit, and that defendant cannot be found, and has no last place of abode in said county, or that no agent of defendant could be found on whom service could be made, the justice may proceed with the cause in the same manner as though there had been a personal service.

For the endorsement on said affidavit, the justice shall receive an additional fee of twenty-five cents, which shall be included in the costs of the suit.

a. Chapter 158 of Laws of 1861 amended this 53d section of the Code by adding to it all that follows subdivision 9.

854. No jurisdiction.

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.

b. Jurisdiction of Justices.-A JUSTICE OF THE PEACE HAS JURISDICTION OF THE FOLLOWING ACTIONS, namely: Actions-By seamen against shipping agents for advance pay, the act of 1819 applies only to actions against the owner, master or commander of a ship (Loftus v. Clark, 1 Hilt. 310). By dis

trict school teachers for wages (Reynolds v. Mynard, 1 How. Ap. Cas. 620). Against a justice for wilfully refusing to issue an execution (Van Vleck v. Burroughs, 6 Barb. 341) or for wrongfully refusing to approve an appeal bond (Tompkins v. Sands, 8 Wend. 462). For trespass to lands in another county than that where the justice resides (Graves v. McKeon, 2 Denio. 639, aff'd 1 How. Ap. Cas. 345). For enticing away a wife (Chase v. Hale, 8 Johns 461). Against a sheriff for an escape (Jansen v. Stoughtenburgh, 9 Johns. 369), or for not returning an execution, where the damage does not exceed $200 (Loughran v. Orser, 15 How. 281). For penalty under a corporation by-law (Walker v. Cruickshanks, 2 Hill, 296). Upon judgments (McGuire v. Gallagher, 2 Sand. 402); and justice's judgments exceeding $100 (Humphrey v. Persons, 23 Barb. 313). On a bond (Boomer v. Laine, 10 Wend. 525), but query an executor's bond (O'Neil v. Martin, 1 E. D. Smith, 404; Mahoney v. Gunter, 10 Abb. 431). On a promise to discontinue a suit (Jarrington v. Bullard, 40 Barb. 513). For injury to personal property (Bull v. Colton, 22 Barb. 94), where it does not amount to an assault on the person (Rich v. Hogeboom, 4 Denio, 453). If the plaintiff state his demand at more than four hundred dollars, but claim damages only to four hundred dollars, the justice has jurisdiction. So, the plaintiff may sue on a demand exceeding four hundred dollars, and reduce it to the justice's jurisdiction by voluntary credits or deductions (Tuttle v. Maston, 1 Johns. Cas. 25; 12 Johns. 425; Bennett v. Ingersoll, 24 Wend. 113), except an action within subd. 2 of sect. 53 (Bellinger v. Ford, 14 Barb. 250). The justice is to decide whether or not the accounts on both sides exceed $400, and where the evidence is conflicting his decision is conclusive (Glackin v. Zeller, 52 Barb. 147; Parker v. Eaton, 25 id. 122).

a. Foreign Corporations.-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 Manf. Co. 2 E. D. Smith, 38).

b. Executors.-Executors and administrators may sue, but cannot be sued, in a justice's court; and if they sue, the defendant may plead a set-off if he have one, and if he prevail may bave 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. 236, s. 53).

c. Adjoining Towns.-Towns which corner together, but do not touch otherwise, are "adjoining towns" within the statute relating to justice's jurisdiction (Holmes v. Carley, 31 N. Y. 289).

d. Confession of judgment.—A justice may take a confession of judgment any where in his county (Pollock v. Aldrich, 17 How. 109; Stone v. Williams, 40 Barb. 322). It must not be for a sum exceeding $500 (Daniels v. Hinckston, 5 How. 322; Griswold v. Sheldon, 1 Code R. N. Š. 261), but an entire demand may be divided and several judgments confessed (Cornell v. Cook, 7 Cow. 309). A justice cannot take the confession of judgment by one who is his son in law (Chapin v. Churchill, 12 How. 367). Omitting to annex affidavit to confession renders it void as against creditors, but binding on the defendant (Stone v. Williams, 40 Barb. 322). A judgment may be confessed on the trial without the formalities prescribed by the revised statutes (Gates v. Ward, 17 Barb. 424).

e. A Justice of the Peace has not jurisdiction of the following actions, namely: Actions-To charge the separate estate of married women (Coon v. Brook, 21 Barb. 546). For injury to the property amounting to an assault on the person (Rich v. Hogeboom, 4 Denio, 453; and see Bull v. Colton, 22 Barb. 94). For converting personal property where the complaint claims more than $200 (Bellinger v. Ford, 14 Barb. 250), although the amount claimed was inserted by mistake (id.), if the claim had been $200 and over, it would not have ousted the justice of jurisdiction (Rockwell v. Perine, 5 Barb. 573). Against a justice for a false return (Worden v. Brown, 14 How. 327). For damages for fraud in the sale of real estate (White v. Seaver, 25 Barb. 236). Where the contested demands exceed $400 (Stilwell v. Staples, 3 Abb. 365). If the accounts have