ant of the deposit of the summons and complaint with the justice, the defendant is bound to ascertain the fact of deposit, at the peril of losing his right to answer (ib.).

a. Where a defendant fails to comply literally with the terms of his undertaking filed under this section, omitting to give the written admission of service of the summons and complaint, but puts in his answer in the supreme court, and the plaintiff accepts it without such admission,-held, a substantial performance of the undertaking, and the waiver does not affect the identity of the suits before the justice and in the supreme court (Wiggins v. Tallmadge, 7 How. 404).

b. Undertaking.-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, or state any consideration; but it should state the place of residence of the surety, and be acknowledged by him. The surety must justify to the amount of $200 (Thompson v. Blanchard, 3 N. Y. 335; and see 17 How. 394; 10 Abb. 454.) The undertaking, when approved, should, it is presumed, reman in the custody of the justice. Perhaps, 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 How. 414). See note to section 60.

$57. (Am'd 1851, 1858.) 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 supreme 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.

$58. 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 defense, from drawing the title in question.

59. (Am'd 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.

c. Ousting Justice of Jurisdiction.—Where it appears on the trial, from the plaintiff's own showing, that the title to real property is in question, and such title is 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; Gage v. Hill, 43 Barb. 44). Where title to real estate is not pleaded, the justice is not ousted of his jurisdiction, because it may be necessary to prove title in order to sustain the action, unless such title is disputed by the defendant (Bellows v.

Sackett, 15 Barb. 97; Fredonia Plank Road Co. v. Wait, 27 Barb, 214; Adams v. Rivers, 11 Barb. 390). To entitle a defendant to a dismissal, he must call the justice's attention specifically to the objection (Brown v. Schofield, 8 Barb. 239).

§ 60. (Am'd 1851, 1858.) 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 55, 56, and 57, the plaintiff may prosecute an action for the same cause in the supreme 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 defense only which he made before the justice.

a. Pleadings in new action.-On a new action being brought, the complaint and answer must be as before the justice, without any further or additional pleading (M'Namara v. Bitely, 4 How. 44); and the defendant cannot amend his answer in the supreme court, of course, in matters of substance (Cusson v. Whalon, 1 Code Rep. N. S. 27; Wendell v. Mitchell, 5 How. 424). If the plaintiff complains for a different cause of action, or the defendant sets up a different defense from that used before the justice, the remedy of the adverse party is by motion to strike out the pleading, and require it to be conformed to that in court below (Brotherson v. Wright, 15 Wend. 240; Tuthill v. Clark, 11 ib. 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 supreme 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 applies to the answer, and if it state the same ground of defense a mere difference in form between it and the answer before the justice will not invalidate it. The defendant may abandon part of his defense before the justice, when he comes to answer in the supreme court, and yet the defense be the same (Wiggins v. Tallmadge, 7 How. 404).

b. Appeal to court of appeals.-The suit for the same cause in the supreme court, is an action originally commenced in a court of a justice of the peace (Brown v. Brown, 6 How. 320; Pugsley v. Kesselburgh, 7 ib. 402; 10 N. Y. 420; Wiggins v. Tallmadge, 7 How. 404). An affidavit in support of a motion to dismiss an appeal to the court of appeals from a judgment of the supreme court, because the suit was originally commenced in a court of a justice of the peace, must show the justice was ousted of jurisdiction by the filing an undertaking required by section 56, as well as by the plea of title (Lalliette v. Van Keuren, 7 How. 409). The record need not show the identity of the action in the supreme court with that before the justice. The identity may be shown by affidavit (Pugsley v. Kesselburgh, 10 N. Y. 420. See § 11, ante).

c. Continuing in county court.—In an action prosecuted before a justice, where a plea of title was interposed, and proceedings had for continuing the prosecution in the county court, it was not necessary, in order to give the county court jurisdiction, that it should appear that the defendant was a resident of the county when the action was commenced (Clyde Plank Road Co. v. Baker or Parker, 12 How. 371; 22 Barb. 323).

§ 61. (Am'd 1851, 1858.) Costs.

If the judgment in the supreme 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.

See section 304, post.

As to the mode of entering judgment, see section 274 of this Code.

§ 62. (Am'd 1849, 1851, 1858, 1860.) Answer of title as to part. Transfer of cases to supreme court.

If, in an action before a justice, the plaintiff have several causes of action, to one of which the defense 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 fiftyfive and fifty-six, the justice shall discontinue the proceedings as to that cause, and the plaintiff may commence another action therefor in the supreme court. As to the other causes of action, the justice may continue his proceedings.

All actions pending in any county court, on the seventh day of May, eighteen hundred and fifty-eight, in all cases in which a plea of title was interposed in actions originally commenced in a justice's court, are transferred to and vested in the supreme court, with full power and jurisdiction to proceed therein, as if commenced in said supreme court, by reason of a plea of title having been interposed in a justice's court in like cases.

§ 63. (Am'd 1849.) Docketing justices' judgments.

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.

See note to section 68, post.

§ 64. (Am'd 1849, 1851, 1852, 1860, 1867, 1869, 1870.) Rules. The following rules shall be observed in the courts of justice 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 defense or counter-claim.

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 defense, although it be taken as true.

§ 61. (Am'd 1851, 1858.) Costs.

If the judgment in the supreme court be for the plai shall recover costs; if it be for the defendant, he shall costs, except that upon a verdict he shall pay costs to the unless the judge certify that the title to real property question on the trial.

See section 304, post.

As to the mode of entering judgment, see section 274 of this (

§ 62. (Am'd 1849, 1851, 1858, 1860.) Answer of title Transfer of cases to supreme court.

If, in an action before a justice, the plaintiff 1 causes of action, to one of which the defense of title erty shall be interposed, and as to such cause the de answer and deliver an undertaking, as provided in five and fifty-six, the justice shall discontinue the to that cause, and the plaintiff may commence a therefor in the supreme court. As to the other cau the justice may continue his proceedings.

All actions pending in any county court, on t of May, eighteen hundred and fifty-eight, in all ca plea of title was interposed in actions originally c justice's court, are transferred to and vested in the with full power and jurisdiction to proceed the menced in said supreme court, by reason of a ple been interposed in a justice's court in like cases.

§ 63. (Am'd 1849.) Docketing justices' judgm A justice of the peace, on the demand of a pa he shall have rendered a judgment, shall give a which may be filed and docketed in the office county where the judgment was rendered. ceipt of the transcript by the clerk shall be entered in the docket; and from that time, the a judgment of the county court. A certified judgment may be filed and docketed in the cl other county, and with the like effect, in ever county where thudgment was rendered; ex a lien only frohe time of fil cript. But no judgme