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been settled, the balance is the only subsistent 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 matters of account must be open and unliquidated (2 Cow. 413); thus, if the plaintiff should prove a claim of $300, and the defendant a payment on account of $250, the justice must give judgment for the balance (b.) 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). A claim for a balance of $68 for work and labor, the aggregate of which work and labor amounted to $400, reduced by payments to the sum first named, does not create a case of mutual accounts (Ward v. Ingraham, 1 E. D. Smith, 538). Otherwise when the defense seeks to set off items arising in a course of mutual dealing, which themselves constitute an affirmative claim in the defendant's favor, and which have not been specifically appropriated as payments in reduction of the plaintiff's claim (ib.)

a. Where the plaintiff, in an action arising on contract, for recovery of money only, proves contested demands which with those established by the defendant exceed $400 in amount, a case arises in which a justice of the peace has no jurisdiction; demands' contested by the pleadings, but admitted on the the trial are "proved." Plaintiff is not required to commence an action in a justice's court and prove demands which exceed $400, and be dismissed, as a necessary preliminary to suing in a court of record (Stilwell v. Staples, 3 Abb. 365; 5 Duer, 691).

b. In an action in which the plaintiff demanded judgment for $336 and interest, the defense was payment and a counter-claim of $200; on the trial before a referee he found the plaintiff's claim to be $260, and that the defendant had made payments on account to the amount of $95, and had a counterclaim to the amount of $136—held the accounts between the parties did not exceed $400 (Crim v. Cronkhite, 15 How. 280; and see Brady v. Durbrow, 2 E. D. Smith, 78.)

c. On its being proved that the amounts exceed $400, the justice is required to enter a judgment of discontinuance, with costs (10 Wend. 559; see § 344, sub. 3, post).

d Disability of justice.—The statute declaring that no judge of any court can sit as such in any cause in which he is a party, extends to justices of the peace (Baldwin v. McArthur, 17 Barb. 415, and see Chapin v. Churchill, 12 How. 367; Re Hopper, 5 Paige, 489). So does the law of 1847, ch. 280, s. 81, forbidding a judge to act in any cause in which he has been counsel (Carrington v. Andrews, 12 Abb. 348). But the statute forbidding a partner of or clerk to a judge practicing before him, does not apply (Fox v. Jackson, 8 Barb. 355). The provision suspending the jurisdiction of a justice on his becoming an innholder, or tavern-keeper, applies to his civil jurisdiction (Rice v. Milks, 7 Barb. 337). A justice cannot sit in a cause to which a corporation is a party, if he be related to a stockholder in such corporation (Place v. Butternuts Woolen Man. Co. 28 Barb. 503). A justice of the peace is not disqualified from trying a cause by reason of his having been a juror in an action between the same parties for the same cause of action (Travis v. Jenkins, 30 How. 152). A judgment rendered by a justice of the peace who is related to either of the parties is void (Schoonmaker v. Clearwater, 41 Barb. 200).

e. Long summons.—. A justice of the peace has civil jurisdiction, by long summons, of all persons residing within the town, or adjoining the town of the justice's residence, and within his county, or where the plaintiff resides in the same town as the justice or an adjoining county (Cooper v. Ball, 14 How. 295). There is no jurisdiction by long summons of a non-resident (Willins v. Wheeler, 8 Abb. 116). Joint debtors may be sued by long summons, if one be a resident (Burghart v. Rice, 2 Denio, 95). But this rule does not apply to the case of an action against the maker and the endorser of a promissory note; they are not joint debtors (Harriott v. Van Cott, 5 Hill, 285; Kelsey v. Bradbury, 21 Barb. 531). No provision is made by statute for process by warrant, or attachment, or short summons against a corporation. A railroad

corporation may, therefore, be sued by a long summons (Johnson v. Cayuga & Sus, R. R. Co. 11 Barb. 621), and may insist on being sued by long summons in a county through which their road passes. They are, in law, residents of such county (Belden v. N. Y. & Harlem R. R. Co. 15 How. 17), unless the plaintiff is a non-resident (Wilde v· N. Y. & Harlem R. R. Co. 1 Hilton, 302).

a. A non-resident has his option to sue by long or by short summons (Kelly v. Kelly, 2 E. D. Smith, 250; and see Ackerman v. Finch, 15 Wend. 652).

b. Form of the summons.-The form of the summons in these courts is not governed by the code (Williams v. Price, 2 Sand. 229). The summons should state a cause of action (Ellis v. Merrit, 2 Code R. 68; Cooper v. Chamberlain, ib. 142; Bray v. Andreas, 1 E. D. Smith, 387; Hogan v. Baker, 2 id. 22; contra, see Cornell v. Bennett, 11 Barb. 657; Smith v. Joyce, 12 ib. 21); but where the defendant was summoned to answer the plaintiff's "complaint for money due" (Silkman v. Boiger, 4 E. D. Smith, 236), or to answer the complaint of J. W. B. for $100 damages in the action on contract, it was held sufficient (Bray v. Andreas, 1 ib. 387); and where the summons was "to answer the complaint for professional services" (Bissell v. Dean, 3 id. 172), and also where the summons required the defendant to answer in "civil action for damage and false representation in the sale of a horse,” on appeal it was held sufficient. The particular plea need not be stated (Delancey v. Nagle, 16 Barb. 97; Humphrey v. Persons, 23 Barb. 313). The summons omitting to state the plea, or the nature of plaintiff's claim, is no cause for reversing the judgment (Cornell v. Bennett, 11 Barb. 657).

e. Although a summons issued by a justice claims damages exceeding $400 the defendant is bound to appear in the action (Humphrey v. Persons, 23 Barb. 313); and claiming $400 and over would not render the summons a nullity (Rockwell v. Perine, 5 Barb. 573). A justice acquires no jurisdiction where the defendant, being a non-resident, is sued by a summons, returnable more than four days after its date, or served less than two days before the return day (Robinson v. West, 11 Barb. 309).

d. Semble, plaintiff may fill up process as the clerk of the justice (The People v. Smith, 20 Johns. 63; see, contra, Borrodale v. Leek, 9 Barb. 611).

e. Short summons.—A short summons against a non-resident, allowed by § 33 of the non-imprisonment act, issues of course without security, although the plaintiff is also a non-resident (Ackerman v. Finch, 15 Wend. 652; but see Allen v Stone, 9 Barb. 60). A non-resident of the county must be proceeded against by short summons or attachment (Thompson v. Sayre, 1 Denio, 175). An action may be commenced against a resident corporation by short summons if the plaintiff is a non-resident and furnishes the requisite bond and affidavit (Wilde v. N. Y & Harlem R. R. Co. 1 Hilton, 302); but only on these conditions (Belden v. N. Y. & Harlem R. R. Co. 15 How. 17).

f. To authorize the issuance of a short summons the facts which warrant it must be shown affirmatively (Allen v. Stone, 9 Barb. 60; Sperry v. Major, 1 E. D. Smith, 361). As to what is sufficient proof, see Waters v. Whittemore, 13 Barb. 634.

g. An action to recover back illegal fees exacted by a non-resident defendant as an attorney cannot be commenced by short summons (Waters v. Whittemore, 22 Barb. 593).

h. Attachment.-To authorize the issuance of an attachment an affidavit must be presented, and a bond with surety given (Bennett v. Brown, 4 N. Y. 254; Daris v. Marshall, 14 Barb. 96; Kelly v. Archer, 48 Barb. 68). The affidavit is sufficient, if it shows the defendant is a non-resident (Bascom v. Smith, 31 N. Y. 595), that plaintiff has a debt against him of a specified amount, arising on contract (Van Kirk v. Wilds, 11 Barb. 520; Williams v. Barnaman, 19 Abb. 69), or for a tort (Pope v. Hart, 35 Barb. 630). An oral statement of a witness under oath, written down by the justice, although not signed by the witness, is a sufficient affidavit (Millius v. Shafer, 3 Denio, 60); but an oral statement not reduced to writing is not sufficient (Comfort v.

Gillespie, 13 Wend. 404). The justice may take into consideration an affidavit made by another plaintiff to procure an attachment against the same defendant (Colver v. Van Valen, 6 How. 102). An affidavit stating facts indicating an intent to defraud is insufficient; it must state a belief of a fraudulent intent (id.; Miller v. Brinkerhoff, 4 Denio, 118; Pope v. Hart, 35 Barb. 630; Colver v. Van Valen, 6 How. 102); and the facts must also be stated (Smith v. Luce, 14 Wend 237; Connell v. Lascells, 20 id. 77; Stewart v. Brown, 16 Barb. 367; Frost v. Willard, 9 Barb. 440; Camp v. Tibbetts, 2 E. D. Smith, 20; 3 Code R. 45). The facts must be sworn to positively, not on belief (Johnson v. Moss, 20 Wend. 145; Fulton v. Heaton, 1 Barb. 552). An affidavit in which the facts are stated on the belief only of the deponent is fatally defective (Dewey v. Greene, 4 Denio 93; Mott v. Lawrence, 9 Abb, 196). The objection, if made in due time, is not waived by the defendant pleading after his objection is overruled (Avery v. Slack, 17 Wend. 85; Shannon v. Comstock, 21 id. 457; Wheeler v. Lampman, 14 Johns. 481); but pleading without previously objecting is a waiver (id. Swartwout v. Roddis, 5 Hill, 118). Objections improperly overruled are sometimes waived by afterwards going on with the suit (3 Hill, 180, 499; 5 id. 428). If the affidavit contains some evidence for the justice to act on, the proceeding will not be reversed for insufficiency of proof (Rosenfield v. Howard, 15 Barb. 546); and cannot be questioned in a collateral proceeding (Kissock v. Grant, 34 id. 144). An affidavit that defendant kept concealed to avoid service of a warrant, not showing the kind of warrant, held insufficient (Lynde v. Montgomery, 15 Wend. 461). Proof that defendant has removed property, or made a mortgage, without showing an intent to defraud, is not sufficient (Connell v. Lascells, 20 Wend. 77; Rosenfield v. Howard, 15 Barb. 546; Mott v. Lawrence, 9 Abb. 196; 17 How. 559.)

a. Security.—A bond must be given (Homer v. Brinckerhoff, 1 Denio, 184; Bennett v. Brown, 4 N. Y. 254 ; Davis v. Marshall, 14 Barb. 96), by plaintiff or some one on his behalf with surety (Millius v. Shafer, 3 Denio, 60). It must truly describe the action (Comført v. Gillespie, 13 Wend. 404). The condition of the bond extends to the final result of the proceedings (Ball v. Gardner, 21 Wend. 290; see Fenno v. Dickenson, 4 Denio, 84), and all damages sustained by the attachment (Groat v. Gillespie, 25 Wend. 383; Winsor v. Örcutt, 11 Paige, 578; and see Earl v. Spooner, 3 Denio, 246; Bennett v. Brown, 31 Barb. 158). As to approving bond (Bascom v. Smith, 31 N. Y. 595).

b. Return.-An attachment on the ground that the defendant has left the county with intent to defraud his creditors, must be returnable not less than six nor more than twelve days from date (Johnson v. Moss, 20 Wend. 145).

c. Waiver.—A non-resident sued by long attachment may waive the irregularity, and take his remedy on the bond (Bowne v. Mellor, 6 Hill, 496). A long attachment, regular on its face, protects the officer (Webber v. Gay, 24 Wend. 485).

d. Priority. An attachment actually levied has priority over an execution in the sheriff's hands, but on which no levy has been made (Ray v. Harcourt, 19 Wend 495; Dubois v. Harcourt, 20 id. 41); but to preserve priority, plaintiff must proceed with due diligence (Van Loan v. Kline, 10 Johns. 129; Sterling v. Welcome, 20 Wend 238), and suffer its removal out of the county (id.). e. Redelivery.-On a claim by a third party to goods attached, the bond for their delivery must be for double the value of the goods attached (Kamena v. Wanner, 6 Abb. 193).

On plaintiff's recovering judgment, if an appeal is taken, the attached property must be released (Keyser v. Waterbury, 7 Barb. 650; and see Moore v. Somerindyke, i Hilton, 199).

ƒ. Judgment.—Where an attachment issues on the ground that defendant has departed with intent to defraud, &c., judgment should be entered without a summons (Stewart v. Brown, 16 Barb 367).

g. Return.—A return of a levy, without stating that a copy of the attachment was served, is not sufficient (Willard v. Sperry, 16 Johns. 121). A return

of levy on property, without saying of the defendant, or a return of delivery of a copy without saying a certified copy, held sufficient (Johnson v. Moss, 20 Wend. 145; Van Kirk v. Wilds, 11 Barb. 520).

a. Service. The attachment must be served personally, if defendant can be found if not served personally, a summons must issue (Taylor v. Harker, 1 E. D. Smith, 391). A return that defendant could not be found in the county is equivalent to a return that no personal service has been made (Rosenfield v. Howard, 15 Barb. 546).

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b. Warrant.—A warrant is the only process by which a person can commence an action for a tort before a justice of the peace of the county in which he resides against a non-resident of such county; and in all cases on application for a warrant, except where the action shall have been commenced by summons, the applicant shall, by affidavit, state the facts and circumstances within his knowledge, showing the grounds of his application (Pope v. Hart, 35 Barb. 630; 23 How. 215). An affidavit which stated positively that the applicant was a resident of the county, and that the defendant was a resident, and also that, as he verily believed, he had a good cause of action against the defendant for fraud and deceit in the sale by him of a certain pair of horses to plaintiff, was held sufficient (id.). The applicant for a warrant may prove facts necessary to its issuance (Terry v. Fargo, 10 Johns. 114; Bissell v. Hill, 3 Wend. 389). The requisite security may be by a deposit of money (Wheelock v. Brinkerhoff, 13 Johns. 481); but a note to the justice, requesting him to let plaintiff have a warrant, and that the writer would be " answerable for the costs," is not a sufficient security (Money v. Tobias, 12 Johns. 422). The security extends to costs on appeal (Traver v. Nichols, 7 Wend. 434). Omitting to state the facts which entitle the party to a warrant is a jurisdictional defect (Loder v. Phelps, 13 Wend. 46; Money v. Tobias, 12 Johns. 422). A warrant in favor of two plaintiffs, partners, cannot issue on an affidavit that one is a non-resident (Linnell v. Sutherland, 11 Wend. 568). The defendant must be brought before the justice (Colvin v. Luther, 9 Cow. 61). Security taken for his appearance is void (Millard v. Canfield, 5 Wend. 61). The justice should quash the warrant on its being shown that the defendant had been a resident thirty days before warrant issued (Shannon v. Comstoch, 21 Wend. 457).

c. Service of summons.-Where the plaintiff is a constable he may himself serve the summons (Tuttle v. Hunt, 2 Cow. 436; Putnam v. Mann, 3 Wend. 202). Service on the 2d for the 8th day of the month is in time (Columbia Turnpike Road Co. v. Hayward, 10 Wend. 422). The service should not be on Saturday on persons who keep that day holy (Laws 1847, ch. 349; Marks v. Wilson, 11 Abb. 88).

d. Return of service.-The return should state the time and manner of service, and the statute requirement in this respect should be strictly complied with (Wheeler v. Lampman, 14 Johns. 481; Legg v. Stillman, 2 Cow. 418; Stewart v. Smith, 17 Wend. 517; Putnam v. Mann, 3 id. 202); and requires a revenue stamp (Miller v. Larmon, 38 How. 417). A return of "personally served," or of "served by copy," held sufficient as to manner of service (Legg v. Stillman, 2 Cow. 418; Tuttle v. Hunt, id. 436; Hughes v. Mulvey, 1 Sand. 92; B'd of Excise of Saratoga v. Doherty, 16 How. 46); but where the return was "served by copy," without stating whether the service was a personal service by copy, or by leaving a copy, was held not sufficient (Foster v. Hazen, 12 Barb. 547). Where the action is for a penalty the return need not show that the statutory endorsement on the summons was also served (B'd of Excise of Saratoga v. Doherty, 16 How. 46). Where the defendant is a corporation the return should show how the service was made (Sherwood v. Saratoga & W. R. R. Co. 15 Barb. 650). The justice is to decide whether the return shows a service sufficient to give him jurisdiction. If the return shows sufficient personal service the justice has jurisdiction, and if the service was not in fact sufficient the judgment may be reversed on appeal, but neither the return nor the judgment can be questioned collaterally (N. Y. & Erie R. R. Co. v. Purdy, 18 Barb. 574;

Fitch v. Devlin, 15 id. 47; Hubbard v. Chapin, 28 How. 40%). In an action against a railroad company, the constable returned that he served the summons personally on A B, freight agent of defendants, at, &c., no person having been designated by them upon whom process might be served, and that no officer of the company resided within the county on whom process could be served, held that defendant might show on appeal that the service was unauthorized, as there was a director resident in the county (Wheeler v. N. Y. & Harlem R. R. Co. 24 Barb. 414). The return is prima facie evidence of the facts therein stated (id.). A return of personal service indorsed on the summons by the justice, at the request of the constable, but not subscribed by the constable, is sufficient, and confers jurisdiction on the justice (Reno v. Pinder, 20 N. Y. 298, rev'g s. c. 24 Barb. 423). An entry in the docket, "Sept. 1. Sums 2 pers. by S. B. Ward, Cons. 11 plt. appears," was held no evidence of the service (Manning v. Johnson, 7 Barb. 457).

On summons against two or more jointly liable, a return of service on one defendant only gives jurisdiction to proceed in form against all the defendants (Fogg v. Child, 13 Barb. 246). On attachment it is otherwise (McDoel v. Cook, 2 N. Y. 110).

The summons must be returned to the justice with a written return thereon, or the justice has no authority to proceed (Jackson v. Sherwood, 50 Barb. 356). A person deputized to serve a summons must make a return; the same as required of a constable (id.).

a. Appearance. The parties may now appear in person or by attorney, formerly it was otherwise (Smith v. Goodrich, 5 Johns. 353), but attorneys-atlaw, as such, are not recognized in justices' courts (Hugh v. Mulvey, 1 Sand. 92; Cohen v. Dupont, id. 260; see, however, Laws 1862, ch. 484; Laws 1864, ch. 421). The same person cannot appear as attorney for both parties (Sherwood v. Saratoga R. R. Co. 15 Barb. 650). And the constable or person deputized who served the process cannot advocate the cause; he might appear on the return day, and present plaintiff's demand, but could not prove the cause of action (Ford v. Smith, 11 Wend. 73; Kittle v. Baker, id. 354; Knight v. Odell, 18 How. 279). A constable who serves the process, appearing as counsel, renders the judgment irregular but not void (Wilkinson v. Vorce, 41 Barb. 370). The wife of one of the parties was allowed to appear for him (Hughes v. Mulvey, 1 Sand. 92). The attorney must be duly authorized to appear, and an authority "to collect" is sufficient authority to appear (McMinn v. Richtmeyer, 3 Hill, 236). The attorney must prove his authority to appear (Fanning v. Trowbridge, 5 Hill, 428), and if the authority is in writing its execution must be duly proved (Timmerman v. Morrison, 14 Johns. 369), if insisted upon (see Hirshfield v. Landman, 3 E. D. Smith, 208; Bush v. Miller, 13 Barb. 481). Omitting to object on the trial to the authority of the party to appear, is an admission of his authority (Ackerman v. Finch, 15 Wend. 652; and see Treadwell v. Bruder, 3 E. D. Smith, 596). The justice cannot act on his own knowledge of the authority; there must be proof before him (Beaver v Van Every, 2 Cow. 429; Lester v. Crary, 1 Denio, 81; Wilcox v. Clement, 4 id 60). As to what is sufficient proof of authority to appear, see Warren v. Helmer, 8 How. 419; Andrews v. Harrington, 19 Barb. 343; Underhill v. Taylr, 2 Barb. 348; Armstrong v. Craig, 18 Barb. 387; Bunker v. Latson, 1 E. D. Smith, 410; Birch v. Westfull, 5 N. Y. Leg. Obs. 178. See Appearance on Trial, post.

b. Effect of appearance.-All defects in the summons and service thereof are cured by appearance and answer without objection (Heilner v. Burras, 3 Code R. 17; Cushingham v. Phillips, 1 E. D. Smith, 417; Andrews v. Thorp, ib. 615; Bray v. Andreas, ib. 387; Hogan v. Baker, 2 ib. 22; Sprague v. Irwin, 27 How. 51; Watson v. Morton, id. 294), and an appearance of a defendant, on the return of an attachment, gives the justice jurisdiction to proceed without issuing a summons (Conway v. Hitchins, 9 Barb. 378).

Where a summons is issued by a justice not residing in the same town with

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