either of the parties, nor in an adjoining town, the defendant is not, in order to avail himself of his objection to the jurisdiction, bound to appear and object. If he does not appear, a judgment rendered will be voidable, on an appeal and assignment of error in fact (Tiffany v. Gilbert, 4 Barb. 320), and the same rule applies to a non-resident defendant sued by a long summons (Willins v. Wheeler, 28 Barb. 669; and see Buck v. Waterbury, 13 Barb. 116; Fitch v. Devlin, 15 id. 47). A non-resident defendant sued by a long summons appeared and answered at the time, alleging, but not setting up as a defense, his non-residence, and not presenting any affidavit of non-residence,-held that he had waived objection, and that the justice had jurisdiction (08burne v. Gilbert, 52 Barb. 158).

a. Calling Action.-A justice has jurisdiction of a cause at the return of the summons and of the person one hour after the return, whether the defendant is present or not (Sagendorph v. Shult, 41 Barb. 102). The provision requiring the justice to wait one hour after the hour appointed applies to the return day (Allen v. Stone, 9 Barb. 60), an adjourned hearing (Sherwood v. Saratoga & W. R. R. Co. 15 Barb. 650), and where the trial is necessarily held open to a future day (Clark v. Garrison, 3 Barb. 372). After the justice had called through his list of causes, a defendant who was in waiting asked his cause to be called, and was informed by the justice that there was no such cause; whereupon he left the court;-held the justice could not afterwards, and in the defendant's absence, proceed with the cause (Murling v. Grote, 3 Abb. 109).

b. Discontinuance by non-appearance. The action may be discontinued by the non-attendance of the justice or the plaintiff on the return day, or any adjournment day within one hour after the hour appointed (Lynsky v. Pendegrast, 2 E. D. Smith, 43; Sprague v. Shed, 9 Johns. 140; Green v. Angel, 13 id. 469). The discontinuance may be waived by consent (Stoddard v. Holmes, 1 Cow. 245); and where the justice did not arrive before the expiration of the hour, but soon afterwards, and after the defendant had left, but he caused his arrival and desire to proceed with his trial to be made known to the defendant, and the defendant attended, objected to the trial proceeding, and refused to take part therein, yet the justice proceeded—on appeal it was held regular (Everett v. Lisk, 1 Code Rep. 70; and see Cornell v. Bennett, 11 Barb. 657; Myer v. Fisher, 15 Johns. 504; Barber v. Parker, 11 Wend. 51; Wilde v. Dunn, 11 Johns. 459; Baldwin v. Carter, 15 id. 496; Wilcox v. Clement, 4 Denio, 160). The justice may postpone calling the case under special circumstances (Hunt v. Wickwire, 10 Wend. 102; Chamberlain v. Lovet, 12 Johns. 217; Pickert v. Dexter, 12 Wend. 150).

c. Appearing pending the trial.-Defendant appearing before the plaintiff's case is closed, should be permitted to make a defense (Sweet v. Coon, 15 Johns. 86; Pickert v. Dexter, 12 Wend. 150; Allen v. Stone, 9 Barb. 60; Mead v. Darragh, 1 Hilton, 395; Atwood v. Austin, 16 Johns. 180; Colvin v. Corwin, 15 id. 557), unless where he does not appear on the return day, and the cause is adjourned (Snell v. Loucks, 11 Johns. 69; see 19 Johns. 390; 8 Cow. 87; 1 Wend. 143; 12 id. 150; 15 id. 557; 4 Den. 576). But he cannot appear and defend after cause is submitted (The People v. Lynde, 8 Cow. 133; Montford v. Hughes, 3 E. D. Smith, 591), nor after judgment (Alburtis v. McCready, 2 E. D. Smith, 39; Sperry v. Major, 1 id. 361; Appleby v. Strang, 1 Abb. 143).

d. Infant defendant.—When the defendant is an infant no proceeding can be had after the return of the summons until after a guardian has been appointed for the infant. If no application is made by or on behalf of the infant, the plaintiff may apply for appointment of guardian. If the fact of infancy is not disclosed prior to the trial, but is disclosed pending the trial, the action should be dismissed; such dismissal will not bar a second action (Harrey v. Large, 51 Barb. 222).

e. Adjournments.-The justice has power on the return day of his own motion to adjourn not exceeding eight days (Thompson v. Sayre, 1 Denio, 175;

Fanning v. Trowbridge, 5 Hill, 428; Nellis v. Mc Carn, 35 Barb. 115), and where the eighth day is Sunday, the adjournment may be to the following Monday (Speidell v. Fash, 1 Cow. 234). Although a justice may adjourn on his own motion, yet where he does not do that, but adjourns on defendant's application and against the wishes of plaintiff and without requiring oath or bail, the action is discontinued (Peek v. Andrews, 32 Barb. 445). The adjournment must be to a day certain (Wilcox v. Clement, 1 Denio, 160). An irregular adjournment, or for longer than is authorized, is cause for reversal of judgment (Kimball v. Mack, 10 Wend. 297; Palmer v. Green, 1 Johns. Cas. 101; Čolden v. Dopkin, 3 Cai. 171; Gamage v. Law, 2 Johns. 192: Dunham v. Heyden, 7 id. 381; Proud fit v. Heuman, 8 id. 391; McCarthy v. McPherson, 11 id. 407; Payne V. Wheeler, 15 id. 492; Redfield v. Florence, 2 E. D. Smith, 339; Wight v. Mc Clave, 3 id. 316; Aberhall v. Roach, id. 345; McCollum v. McClave, 1 Hilton, 140; 3 Abb. 106); but a party asking or consenting to an irregular adjournment cannot allege it for error (Peck v. McAlpine, 3 Cai. 166; Mason v. Campbell, 1 Hilton, 291; Redfield v. Florence, 2 E. D. Smith, 339); and consent may be inferred from neglecting to object (id.; Kilmore v. Suydam, 7 Johns. 529; Fiero v. Reynolds, 20 Barb. 275); and the parties may consent to adjourn, and further, that on the adjourned day the justice may again adjourn (Richardson v. Brown, 1 Cow. 255). But a second adjournment on a written consent, but in the absence of both parties, was held irregular (Weeks v. Lyon, 18 Barb. 530; see Redfield v. Florence, 2 E. D. Smith, 340); and where a cause was adjourned to the 15th, and on the 10th one went before the justice and swore he was authorized by both parties to ask a further adjournment, and on this a further adjournment was had, held that a judgment on such adjourned day, defendant not appearing, was erroneous (Deland v. Richardson, 4 Denio, 95; and see Rawson v. Grow, 4 E. D. Smith, 18).

a. In general a justice has a discretion as to granting an adjournment, and only a clear abuse of that discretion will be error (Onderdonk v. Ranlett, 3 Hill, 323; Irroy v. Nathan, 4 E. D. Smith, 68; Weed v. Lee, 50 Barb. 354, and see Pease v. Gleason, 8 Johns. 409; Rawson v. Grow, 4 E. D. Smith, 18). The discretion is limited to the periods within which power to direct them is given by law; and an unauthorized adjournment amounts to a discontinuance (Proudfit v. Hurmans, 8 Johns. 391; Hogan v. Baker, 2 E. D. Smith, 22). Denying an application for an adjournment made orally without oath, held no ground for reversing the judgment (Edwards v. Drew, 2 E. D. Smith, 55); but refusing an adjournment to which a party shows himself entitled, or imposing improper terms as a condition of the adjournment, is error (Easton v. Coe, 2 Johns. 383; Sebring v. Wheedon, 8 id. 458; Hemstract v. Youngs, 9 id. 364; Beekman v. Wright, 11 id. 442; Annin v. Chase, 13 id. 462; Cross v. Moulton, 15 id. 469). The justice may refuse an adjournment to procure a witness, if the other party will admit the facts expected to be proved by such witness (Brill v. Lord, 14 Johns. 341).

b. Where a justice adjourned a cause with the provision that if the defendant filed security he should have a further adjournment, and the defendant filed the security, but failed to appear on the adjournment day,-held that the justice did right in proceeding to judgment in the absence of defendant (Muber v. Held, 3 Abb. 110).

c. Where the justice, upon the plaintiff opposing an adjournment, denied the defendant's application to adjourn, and afterwards, without proceeding to trial, departed from his office (it does not appear at what hour), stating that it was uncertain at what time he should return-the defendant having left the court, the justice returned about three in the afternoon, resumed his court, and suffered the plaintiff to proceed with his case in the defendant's absence ;on appeal it was held that the justice thus absenting himself, worked a discontinuance of the action (Lynsky v. Pendegrast, 2 E. D. Smith, 43).

d. When the defendant answered, and demanded a jury and cause adjourned to procure a jury, and on the adjournment day he neglected to appear,held that the justice did right in proceeding to try without a jury and in absence of defendant (Kilpatrick v. Carr, 3 Abb. 117).

a. A party who has had one adjournment after issue joined cannot, on tendering security, have a second adjournment without showing special cause (Powers v. Lockwood, 9 Johns. 133; St. John v. Benedict, 12 id. 418; Farrington v. Payne, 15 id. 432). And the special cause must be shown by affidavit (Edwards v. Drew, 2 E D. Smith, 55). The attorney may make the affidavit (Seers v. Grandy, 1 Johns. 514). To entitle a party to a second adjournment on the ground of the absence of a witness, the affidavit must state and show due diligence to obtain the attendance of such witness. It is not enough to allege that the witness was not within reach of process on the day of making the affidavit (Christman v. Paul, 16 How. 17). The affidavit should also state a reasonable expectation of being able to procure the attendance of the witness on the adjournment day (Onderdok v. Ranlett, 3 Hill, 323); and that the party can not safely proceed to trial in the absence of such witness (Lynsky v. Pendegrast, 2 E. D. Smith, 43).

b. An adjournment on the ground of absence of witnesses, or to examine a witness on commission, cannot be demanded as a right after the jury is impaneled (Fink v. Hall, 8 Johns. 437; Parmelee v. Thompson, 7 Hill, 77; Matthews v. Feistell, 2 E. D. Smith, 90); and in Aberhall v. Roach, 11 How. 95, it was held that an adjournment for ten days, after a trial had commenced, without the consent and in the face of an objection by the defendant, to enable the plaintiff to obtain the attendance of a witness, rendered the subsequent proceedings and judgment erroneous. Upon showing that a witness subpoenaed does not attend, and on giving security, a defendant is entitled to a second adjournment, and the court cannot impose any terms (Beekman v. Wright, 11 Johns. 442; Annin v. Chase, 13 id. 462; see Belshaw v. Colie, 1 E. D. Smith, 213). Dangerous sickness of defendant's child held sufficient to entitle him to an adjournment (Rose v. Stuyvesant, 8 Johns. 426). Not so the engagement of counsel in another court (Ranney v. Gwynne, 3 E. D. Smith, 59).

c. Security on adjournment must be in writing (McNutt v. Johnson, 7 Johns. 18; Stewart v. McGuin, 1 Cow. 99). There is no prescribed form, and if it exceeds the requirements of the statute the surety is bound by it (id.; Fondey v. Cuyler, 1 Wend. 464).

d. Continuing court.-After a trial has commenced, the justice may continue his court from one day to the next if the exigencies of the case require it (Day v. Wilbur, 2 Cai. 134); but, semble, not merely to allow either party to produce further proof (Green v. Angel, 13 Johns. 469); and generally, after a trial is commenced, the justice cannot adjourn, unless by consent of parties, or because it is impossible to finish the trial within a reasonable time (Edwards v. Drew, 2 E. D. Smith, 55; Aberhall v. Roach, 11 How. 95; Wight v. McClave, 3 E. D. Smith, 316; Story v. Bishop, 4 id. 423; Gibberton v. Ginochio 1 Hilton, 218; Redfield v. Florence, 2 E. D. Smith, 340; Fairbanks v. Corlies, 1 Abb. 152). The justice inspecting the note sued on, held not to be a commencement of the trial (Olney v. Bacon, 1 Johns. 142).

e. An erroneous adjournment does not make the judgment a nullity; it is good until reversed (Hurd v. Shipman, 6 Barb. 621). The error is cured by the parties afterward going to trial on the merits (Seymour v. Bradfield, 35 Barb. 49).

$55. 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 defense, 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.

a. Setting up title.-Where the complaint is so drawn that the defendant can set up a title in his answer, and on giving the requisite security oust the justice of his jurisdiction, but he omits to set up title, the justice retains his jurisdiction, and the defendant will be precluded from drawing it in question on the trial (Adams v. Rivers, 11 Barb. 390; see Bellows v. Sackett, 15 Barb. 97; Fredonia Plank R'd. Co. v. Wart, 27 Barb. 214, and see note to sec. 59, post).

b. Title 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 637; Muller v. Bayard, 15 Abb. 450; Utter v. Gifford, 25 How 289; Earl of Craven v. Price, 37 How. 15). 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. 569); and in an action for taking away rock from plaintiff's land, where the defendant by his answer admitted the plaintiff's title, and he alleged that he entered pursuant to a contract by which he was to remove the rock, 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. 722).

c. Title embraces the right to the possession, and every thing but the bare, naked possession (Ehle v. Quackenboss, 6 Hill, 437). But the question of actual possession is not a question of title (Fredonia Plank Road Co. v. Wait, 27 Barb. 214; Rathbone v. McConnell, 20 Barb. 311). An answer setting up an entry and claim to land under an executory contract for sale, held, not to constitute a claim of title (Dolittle v. Eddy, 7 Barb. 75; but see Powell v. Rust, 1 Code Rep. N. S. 172).

d. The question of title to land is, in all cases, a question of ownership. The question of title does not arise in an action to recover damages for the breach of an agreement to convey lands, when the only issue made by the pleadings is whether an inchoate right of dower in the wife of defendant was a subsisting incumbrance (Smith v. Riggs, 2 Duer, 622).

e. 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 center of the Fourth avenue, granted the defendants permission to run their cars over a railway laid down on said tract, and that the cows, being unlawfully upon said track, were killed by the engine of the defendants, while lawfully running upon said track,-held, that title was not in question (Longhurst v. New York and New Haven R. R. Co. in the N. Y. Com. Pleas, General Term, July, 1853, Daly and Woodruff, JJ.).

d. Where a party is charged with a liability arising out of his being owner of land, and he disclaims being the owner of that land, this raises a question of title (Regina v. Hardon, 22 Law Jour. Rep. N. S. Q. B. 299; 18 Eng. Law and Eq. R. 403).

f. Where the complaint alleged that defendants unlawfully carried away a quantity of firewood, the property of plaintiffs, and converted same, the defendants answered, that such firewood was cut upon the Tonawanda Reservation; that such reservation is Indian lands, owned and occupied by the Seneca nation of Indians, and that the defendants are Seneca Indians; and that, in their own right as such Indians, they converted said wood, as they lawfully might,-held, that the answer set up title to lands (Smith v. Mitten, 13 How. 325; and see Heath v. Barmour, 35 How. 1).

g. In an action for damages from the bite of a dog, an allegation that the plaintiff when injured was in a place where he had no right to be, does not put in issue a claim of title (Pierret v. Moller, 3 E. D. Smith, 574; and see Roulston v. Clark, id. 367).

h. The question of right of way is not a question of title (Little v. Dean, 34

N. Y. 452; Hastings v. Glenn, 1 E. D. Smith, 402), nor does a question of encroachment involve the title (Fleet v. Youngs, 7 Wend. 291; see, however, Hinds v. Page, 6 Abb. N. S. 58).

a. The introduction of a deed as evidence not of title to land, but to establish some other fact, does not raise a question of title (Nichols v. Bain, 27 How. 286; and see Heintz v. Dellinger, 28 How. 39).

b. Where in an action by the assignee of a lessor of a lease in fee, against an assignee of the lease, to recover rent, the complaint alleged that the plaintiff became the owner of the rent, and became seized in fee of the estate in the demised premises, and the defendant denied all allegations of the complaint,-held, that title came in question (Main v. Cooper, 26 Barb. 468; 25 N. Y. 180).

c. Where the action was in substance the former action of waste, and the complaint alleged a forfeiture and prayed a recovery of possession,—held, that title appeared in question on the face of the complaint (Sneyder v. Beyer, 3. E. D. Smith, 235).

d. In an action for falsely representing himself to have title, and thereby obtaining money and goods, a plea of the general issue was held to raise a question of title (Brooks v. Delrymple, 1 Manning's Mich. R. 145).

e. The title to land does not come in question in a suit to recover a tax paid by mistake by the plaintiff on a lot of the defendant's, the defendant's title to the lot being disputed on the trial (Nixon v. Jenkins, 1 Hilton, 318). f. An answer of title may be interposed by an amended answer and after an adjournment (Hinds v. Page, 6 Abb. N. S. 58; Weeks v. Stroble, 36 How. 123). See note to section 304, post.

§ 56. (Am'd 1851, 1858.)

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 twenty days thereafter, deposit with the justice a summons and complaint in an action in the supreme court, for the same cause, the defendant will, within twenty 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.

g. Admitting service of summons.-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's bringing an action upon such undertaking the defendant moved in the supreme court for leave to admit service of the summons and complaint,-held, that the court had no power to grant such relief. There was no action pending until the service of the summous (Davis v. Jones, 4 How. 340).

h. It seems it is not necessary for the plaintiff to give notice to the defend