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amount of "one hundred dollars and over," but took judgment for less than $100, heldno error; the words "and over" being void for uncertainty.

13. (7 Q.) A justice of the peace has general jurisdiction of an action upon a judgment rendered in a justice's court; and may render judgment for the amount due thereon, although it exceeds $100.

14. A judgment is an express contract of record; and actions thereon are actions arising on con ract. Such actions therefore may be brought in a justice's court.

15. An action cannot be brought upon a judgment rendered in one of the district or justice's courts of the city of New York, without leave of the court.

16. The seventy-first section of the Code forbidding actions upon judgments in any court of this state, except a court of a justice of the peace, applies to the marine, justices, assistant justices, and district courts of the city of New York.

17. (9 Q.) The marine court of the city of New York, and justices' courts generally, have no jurisdiction to issue final process (ca. sa.) against the person.

18. (10 Q.) It seems that a justice of the peace has no jurisdiction of an action to recover damages for fraud in the sale and purchase of real property.

19. (11 Q.) A justice of the peace may, in virtue of his office, and without warrant, not only arrest a person for felony, but also for any breach of the peace, or misdemeanor, less than a felony, committed in his presence.

20. (12 Q.) Where a question as to the jurisdiction of a justice of the peace to act is not raised before the justice at the trial, and that question does not in a satisfactory manner appear from the justice's return, the appellate court will hesitate to reverse the judgment on that ground.

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21. Where a justice's return shows, by fair intendment, that all the jurisdictional steps were taken necessary to a valid judgment before him; that he issued a summons, which was served by a constable personally on the defendant; enough is stated to raise the presumption of regularity as to the form of the summons, and its due service on the defendant. No presumption of error will be indulged against the regularity of the judgment.

22. (13 Q.) A justice of the peace can take the confession of a judgment out of the town in which he resides, anywhere in his county. Except the trial of a civil cause, he is not, by statute, limited in the exercise of any official act to his own town.

23. A justice of the peace has the same authority to receive a confession of a judgment at the defendant's house, in the town of the justice's residence, as he has to receive it at his own house.

24. (14 Q.) A justice of the peace has jurisdiction of an action upon an undertaking, given on the arrest of a defendant.

25. (15 Q.) The only limitation attached by the constitution of 1846 to the jurisdiction of new magistrates, to be created by the legislature in cities and villages, is, that it be local and inferior, the same as justices of the peace of the town in which such village is situated, restricting its exercise to the limits of the village.

26. (16 Q.) The legislature may provide for the designation of justices of the peace to sit in the court of sessions by any law, general or special. And they are not required to take any official oath, other than that which they take as justices of the peace.

27. (17 Q.) A justice of the peace has jurisdiction of an action of trespass, on the case for enticing away the plaintiff's wife. [Quere? What would the action be called under the Code? The most appropriate would seem to be "claim and delivery.”—ED.]

28. (18 Q.) A justice of the peace has jurisdiction of an action of debt for an escape against a sheriff.

29. (19 Q.) Trespass quare clausum fregit may be brought in a justice's court of a different county from that in which the land lies.

See sections 52 and 64.

$ 54. Jurisdiction in civil actions limited.

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 fifty-five to sixty-two, 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.

Question. Has this section been amended since its passage in 1848?

Answer. It has, in 1849, which amendment reads as above.

Q. How did this section read in 1848?

A. As follows:

§ 47. [1848.] But no justice of the peace shall have cognizance of an action,—

1. In which the people of this state are a party, excepting for penalties not exceeding fifty dollars;

2. Nor where the title to real property shall come in question, as provided by sections 48 to 55, both inclusive;

3. Nor of an 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.

Questions.

1. Q. Have justices' courts jurisdiction in actions on contract against married women? 2. Q. When are justices of the peace disqualified from taking confessions of judgment?

3. Q. Have justices of the peace jurisdiction to take confession of judgment out of their

town!

4. Q. What amount of account on both sides are necessary to give a justice of the peace jurisdiction?

5. Q. When is a justice of the peace disqualified from acting by reason of interest, or by the statute?

6. Q. What jurisdiction have justices of the peace in actions by or against executors or administrators?

7. Q. Has a justice of the peace jurisdiction of an action for injuring personal property, when in the commission of assault and battery ?

8. Q. Is a justice of the peace prohibited by plea of title from acquiring jurisdiction in an action for waste?

1. Q, Have justices' courts jurisdiction in actions on contract against married women? A. In Cobine agt. St. John, 12 How., 337, Special Term, January, 1856, BALCOM, J., and in Coon agt. Brook, 21 Barb., 547, General Term, May, 1856, BALCOM, J., it was decided that a justice of the peace has no jurisdiction of an action against a married woman, upon a promissory note given for the benefit of her separate estate, or of any action to charge debts contracted by married women upon their separate estates. have justices of the peace jurisdiction of purely equitable actions of any kind.

Nor

In Walker agt. Swayzee, 3 Abb., 136, N. Y. Common Pleas, General Term, July, 1856, BRADY, J., it was decided that an action was properly brought in a justice's court against a married woman and her husband, to recover damages resulting from a breach of the wife's agreement to repair premises rented by her as her separate estate; and that in such action the justice had power to appoint a next friend.

2. Q. When are justices of the peace disqualified from taking confessions of judgment? A. In Chapin agt. Churchill, 12 How., 367, Herkimer County Court, February, 1856, GRAVES, J., it was decided that a confession of judgment before a justice of the peace who is father-in-law to the plaintiff is illegal on the ground of relationship; and the plaintiff may bring an appeal to the county court, and have the judgment reversed for error in fact.

3. Q. Have justices of the peace jurisdiction to take confession of judgments out of their town!

A. The answer to this question will be found under § 53, Q. 13.

4. Q. What amount of accounts on both sides are necessary to give a justice of the peace jurisdiction?

A. In Brady agt. Durbrow, 2 E. D. Smith, 82, General Term, March, 1853, DALY, J., it was decided that, in a case of "mutual accounts," where the claims of both parties, each against the other, amount together to more than $400, one of the parties cannot sue the other in a justice's court, but must bring his action in a court of record.

In Crim agt. Cronkhite, 15 How., 250, Special Term, December, 1857, BALCOM, J., it was decided that it had been fully settled by authority that payments made towards satisfying a debt were not demands, and constituted no part of an account, but extinguished the debt pro tanto.

In Matteson agt. Bloomfield, 10 Wend., 556, General Term, August, 1833, SUTHERLAND, J., it was decided that, although the accounts exhibited on a trial exceed $400, still a plaintiff who recovers less than $50 is not entitled to costs where the evidence adduced by the defendant proves payments specially made on a contract between him and the plaintiff, and not on an account valid as a set off.

In Ex parte Mills agt. N. Y. Common Pleas, 10 Wend., 537, Special Term, April, 1833, NELSON, J., it was decided that a plaintiff recovering less than $50, in a court of record, is not entitled to recover costs, though his claim, as established at the trial, exceed $200, if it be reduced by payments; if reduced by set-off, he is entitled to costs. Nor is he entitled to costs on the ground that the demands exceeded $400, unless the demands in dispute and established at the trial exceed that sum; payments made are not debts, demands or accounts, within the meaning of the statute.

In Lamoure agt. Caryl, 4 Denio, 370, General Term, May, 1847, BEARDSLEY, J., it was decided that where, in a justice's court, the plaintiff's claim and the defendant's setoff together exceed $400, and the justice, instead of entering judgment of discontinuance, proceeds with the cause, and gives judgment for the balance, such judgment, though erroneous, is not void for want of jurisdiction.

In Ward agt. Ingraham, 1 E. D. Smith, 538, General Term, December, 1852, WOODRUFF, J., it was decided that a claim for a balance of $86, 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, within the meaning of the statute defining the jurisdiction of justices' courts. Payments on a claim are not, in any proper sense, items of an account in favor of the defendant. The account, although reduced by payments, is on one side only within the meaning of the statute. It is 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 specitically appropriated as payments to the reduction of the plaintiff's claim.

In Hoodless agt. Brundage, 8 How., 263. Special Term, December, 1852, HARRIS, J., it was decided that, where the plaintiff sued the defendant on a promissory note which, with interest, amounted to $258.60, but claimed and demanded judgment for a balance) only of $95.85, and the defendant, on the trial, proved his account to be $253.48, and the referee reported a balance due the plaintiff of $5.20, held that the plaintiff was not entitled to costs, as the only claim proved was the defendant's claim, which, with the plaintiff's demand, was short of $400.

In Gilliland agt. Campbell, 18 How., 178, Special Term, April, 1859, BALCOM, J., it was decided that, where an action was brought upon a promissory note for $186, given on the settlement of accounts between the parties, and a defense interposed on the ground of a mistake in fact as to any amount being due to the plaintiff, and the referee, on the trial, examined all the accounts between the parties, which exceeded $2000, and corrected the errors committed in their settlements, which reduced the amount of the note down to $26.12, held that, by the facts found, a justice of the peace had no jurisdiction of the action, and the plaintiff was entitled to recover costs.

In Stilwell agt. Staples, 5 Duer, 691, General Term, October, 1856, OAKLEY, Ch. J., it was decided that a plaintiff who sues in a court of record, in an action arising on contract, and for the recovery of money only, and proves contested demands, which, with those established by the defendant, exceed $400 in amount, is entitled to costs as a matter of course, if he recovers any sum whatever. A justice of the peace has no jurisdiction of such an action.

In Parker agt. Eaton, 25 Barb., 122, General Term, September, 1857, JOHNSON, J., it was decided that, in order to oust a justice of his jurisdiction, in an action before him, on the ground that the sum total of the accounts on both sides exceed $400, the fact must be proved by legal evidence, and the evidence must legitimately tend to establish such fact. 5. Q. When is a justice of the peace disqualified from acting by reason of interest or by the statute?

A. In Baldwin agt. McArthur, 17 Barb., 421, General Term, January, 1854, C. L. ALLEN, J., it was decided that 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. Therefore, where one of the members of a court of sessions granting an order of maintenance, is one of the persons who, as superintendents of the poor, apply for the order, the court has no jurisdiction, and the proceedings and order are void.

In Fox agt. Jackson, 8 Barb., 355, General Term, May, 1850, PARKER, J., it was decided, that the fif y-second section of the judiciary act, which forbids a partner or clerk of a judge to practice before him "as attorney. solicitor, or counsel," is not applicable to a justice's court.

In Travis agt. Jenkins, 30 How., 152, General Term, November, 1865, PARKER, P. J., it was decided, that a justice of the peace is not disqualified from trying a cause and rendering judgment therein, by reason of his having been a juror in an action between the same parties and for the same cause of action, wherein a verdict was rendered for the plaintiff.

In Rice agt. Milks, 7 Barb., 338, General Term, November, 1849, SILL, J., it was decided that by the provisions of the Revised Statutes, (Title 4, ch. 2, § 6, part 3,) suspending the jurisdiction of justices of the peace, under that title, in case they shall become inn holders or tavern keepers, in fact, after their election, and chapter 140, of the laws of 1846, amending that section.-A justice of the peace is not disqualified to entertain proceedings against a person for refusing to work on a highway, on the complaint of an overseer of the highways; although such justice was at the time of his election, and when the proceedings were had, a tavern keeper. Those statutes relate solely, to the civil jurisdiction of justices of the peace, and do not interfere with the powers conferred by other

statutes.

In Robinson agt. West, 11 Barb., 310, General Term, Jnne, 1851, MITCHELL, J., it was decided, that justices courts, including the marine court of the city of New York, do not acquire jurisdiction of the cause, where the defendant, being a non-resident, is sued by a summons, returnable more than four days after its date, or served more than two days before the return day, and the appearance of the defendant for the purpose of an adjourn

ment, and even under force of such process pleading to the action, will not authorize the entry of judgment against him.

See, also, § 52, Q. 5.

6. Q. What jurisdiction have justices of the peace in actions by or against exccutors or administrators?

A. In Wells agt. Newkirk, 1 John., Ca., 228, General Term, January, 1800, it was decided by the COURT, that justices of the peace have no jurisdiction in actions by or against executors or administrators.

In Way agt. Carey, 1 Cai. R., 191, General Term, August, 1803, RADCLIFF, J., it was said, that in the case of Wells agt. Newkirk, 1 John. Ca., 228, this point was decided against the jurisdiction of the justice. We considered the act from which he derived his authority as applicable only to cases in which the parties appeared in their own right, and not to those in which they appeared in autre droit. Since that decision, the legisla ture, when passing the revised act concerning justices' courts, added a section by which, in conformity to the principle of that decision, they denied the jurisdiction of the justice in suits against an executor or administrator, but were silent as to suits in their favor. From this it might be supposed the legislature meant that suits in their favor might be sustained before a justice. But no such authority can be admitted by inference or implication, and the act ought not to be construed to introduce a different rule. The decision in Wells agt. Newkirk, is not, therefore, affected by this act, and the rule continues that the justice has no jurisdiction.

(NOTE.-By the act for the more speedy recovery of debts to the value of $25, passed April 11, 1808, (Sess. 30, ch. 204, 1, Laws of N. Y., vol. 5, p. 375,) in actions by executors and administrators, jurisdiction is given to the justices court.)

In O'Neil agt. Martin, 1 E. D. Smith, 404, General Term, July, 1852, N. Y. Common Pleas, DALY, J., it was decided, that an action against one of the obligors of a bond conditioned for the faithful execution of his duties as administrator, is an action against the defendant personally and within the jurisdiction of a justice's court.

In Mahoney agt. Gunter, 10 Abb.. 431, General Term, May, 1860, N. Y. Common Pleas, HILTON, J., it was stated, that whether an action on the official bond of an executor or administrator, is an action against the executor or administrator as such, within 54 of the Code, excluding justice's courts from cognizance of such actions. Quere. The case of O'Neil agt. Martin, (supra) was commented upon, as an impression of the judge stated as obiter, and should not, therefore, be considered as controlling upon the court.

7. Q. Has a justice of the peace jurisdiction of an action for injuring personal property, when in the commission of an assault and battery?

A. In Rich agt. Hogeboom, 4 Den., 453, General Term, May, 1847, BEARDSLEY, J., it was decided, that trespass cannot be maintained in a justice's court for tearing and injuring the plaintiff's clothes, if it appear that the damage was done in connection with an assault upon his person. It would be incidental merely to the assault, of which a justice has no jurisdiction.

In Bull agt. Colton, 22 Barb., 94, General Term, July, 1856, BALCOM, J., it was decided, that a justice of the peace has jurisdiction of an action for an injury to personal property, a horse, while being driven by the plaintiff-although the plaintiff might have maintained an action in the supreme court for an assault and battery upon him.

8. Q. Is a justice of the peace prohibited by plea of title from acquiring jurisdiction, in an action for waste?

A. In Snider agt. Beyer, 3 E. D. Smith, 242, General Term, October, 1854, WOODRUFF, J., it was decided, that where an action is in substance the former action of waste, the complaint alleging a forfeiture, and praying for a recovery of possession, the title to real estate appears by the pleadings to be in question, and the marine and justice's courts have no jurisdiction.

What is the result of the decisions under this section?

1. (1 Q.) A justice of the peace has no jurisdiction of an action against a married woman upon her promissory note given for the benefit of her separate estate; nor of any purely equitable action.

2. A justice of the peace has jurisdiction of an action against a married woman and Fer husha to recover damages resulting from a breach of the wife's agreement to

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