a. A summons stating a cause of action for more than $100 is a nulity, Yager v. Hannah, 6 Hill, 631. b. All defects in the summons and service thereof, are cured by appearance and answer without objection. Heilner v. Burras, 3 Code, Rep., 17; Cushingham v. Phillips, 1 Smith, 417; Andrews v. Thorp, ib. 615; Bray v. Andreas, ib. 387. c. Where the summons required the defendant to answer "in a civil action for damage and false representation in the sale of a horse," on appeal it was held sufficient, and the court said "we have repeatedly held the particular plea need not be stated in the summons." Delancy v. Nagle, 16 Barb., 97. d. A summons “to answer the complaint of Joseph W. Bray and Thomas Hettherington, in an action on contract to their damage, one hundred dollars or under" is a sufficient specification of the "cause of action." Bray v. Andreas, 1 Smith, 387. e. A railroad company must be treated as an inhabitant and freeholder in each county where its track is laid. Therefore a summons issued against such a company by a justice of the peace, must be made returnable not less than six nor more than twelve days from the time of service, or it is a nullity. Sherwood v. The Saratoga and Washington R. R. Co., 15 Barb., 650. 53. [46.] (Amended 1849, 1851.) Jurisdiction. Justices of the peace shall have civil jurisdiction in the following actions, and no other: 1. An action arising on contract for the recovery of money only, if the sum claimed do not exceed one hundred dollars. 2. An action for damages for an injury to the person, or to real property, or for taking, detaining, or injuring personal property, if the damages claimed do not exceed one hundred dollars. 3. An action for a penalty not exceeding $100. 4. An action commenced by attachment of property, as now provided by statute, if the debt or damages claimed do not exceed one hundred dollars. 5. An action upon a bond, conditioned for the payment of money, not exceeding one 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 shall become due. 6. An action upon a surety bond taken by them; though the penalty or amount claimed exceed one hundred dollars. 7. An action on a judgment rendered in a court of a justice of the peace, or of a justice's 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 two hundred and fifty 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 one hundred dollars. Note to subd. 1. a. If the plaintiff state his demand at more than one hundred dollars, but claim damages only to one hundred, the justice has jurisdiction. So the plaintiff may sue on a demand exceeding one hundred dollars, and reduce it to the justice's jurisdiction by voluntary credits or deductions. Tuttle v. Maston, (1 John. Cas. 25; 12 Johns. R., 425; Bennett v. Ingersoll, 24 Wend., 113.) The plaintiff is not obliged, when he commences his suit to reduce his demand to $100, for that might give the defendant, if he has a set-off, an undue advantage. The parties may present and prove their demands as they are, and if a balance is found, exceeding the justice's jurisdiction, the excess may be remitted, and judgment taken for the residue. (Justice's Manual, 3d ed., 13.) b. One indivisible contract, as a promissory note for $125, or the sale at one time of several barrels of pot ashes, cannot be made the foundation of several suits, so as to recover part in one suit, and part in another. Only one suit can be brought on an entire contract. Justice's Manual, 3d ed., 13; 16 Johns. R., 121, Smith v. Jones, 15 ib., 229. This rule, however, is only applicable to hostile suits (Cornell v. Cook, 7 Cow., 310), for the parties may, by consent, divide a large demand into any number of smaller ones, and the defendant may confess separate judgments for each. c. A justice has no jurisdiction where the sum total of the accounts of both parties, proved to the satisfaction of the justice, shall exceed four hundred dollars. But where accounts have been settled, the balance is the only subsisting 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.) d. The superior court in Maguire v. Gallagher (2 Sand. 402; 1 Code Rep., 127), held that a judgment being an express contract of record, assistant justices and justices of the peace had jurisdiction of suits upon judgments, they being actions arising on contract; but the New York common pleas have refused to acknowledge the authority of the case of Maguire v. Gallagher, and have decided that the 7th subdivision of this section (sect. 53) controls this subdivision (sub. 1), and that a justice's court in the city of New York has no jurisdiction of an action on a judgment of an assistant justice's court between the same parties, and brought without leave of the court first obtained. Mills v. Winslow, 3 Code Rep. 44, [see note to section 71, post.] Note to subd. 2. e. A justice of the peace has no jurisdiction of an action for taking and converting personal property, where the plaintiff in his complaint claims judgment for $200; and in such a case, a judgment in favor of the plaintiff will be reversed, after a trial upon the merits without objection. Bellinger v. Ford, 14 Barb., 250. Note to subd. 3, f. The supreme court in Phillips v. Sture (1 Code Rep., 58), held that an action to recover money lost at play is not an action for a penalty. Note to subd. 4. g. See Attachment, in this code, section 228 Bennett v. Brown, (1 Code Rep. N. S., 267.) h. But the plaintiff cannot provision. 15 Johns. R., 229; i. See note to subdivision 1. Note to subd. 5. split one entire demand so as to bring it within this Note to subd. 8. j. The code of 1848 had no provision corresponding to that contained in this subdivision; and it was therefore held that a judgment taken by confession by a justice of the peace for a sum exceeding $100, while the code of 1848 was in force, was a nullity. Daniels v. Hinkston, 5 Pr. R., 322; and now a judgment by confession for a sum exceeding $250 would be void. Griswold v. Sheldon, 1 Code Rep. N. S., 261. a. No such confession can be taken, or judgment rendered thereon, unless the following requisites be complied with: 1. The defendant must personally appear before the justice. 2. The confession must be in writing, signed by the defendant, and filed with the justice. 3. If the judgment be confessed for a sum exceeding fifty dollars, the confession shall be accompanied by the affidavits of the defendant and the plaintiff, stating that such defendant is honestly and justly indebted to the plaintiff in the sum named in such affidavit, over and above all just demands which he has against him, and that such confession is not made or taken with a view to defraud any creditor. b. Every judgment confessed without a compliance with these provisions will be void as against all persons, except a purchaser in good faith of any goods or chattels, lands or tenements, under such judgment, and except the defendant making such confession. c. The personal appearance of the plaintiff before the justice upon a confession is not necessary, unless the judgment is for more than $50; and the want of such appearance cannot be taken advantage of by the defendant. If, however, the judgment is for a sum exceeding $50, it would be necessary that both parties should personally appear before the justice, to make the requisite affidavit. (Edw. Tr., 3d ed., 118.) d. But a creditor having a demand exceeding $50, may take from his debtor several confessions each for a sum less than $50, to the full amount of his claim, and thus avoid the necessity of making the affidavit required by statute. Cornell v. Cook, 7 Cow., 310; 2 R. S., 342. e. The confession must be for a specified sum. A judgment entered for such a sum as A. B. should award is bad, the confession being made before the award is declared; for a justice has no power to enter a confession for an uncertain and unliquidated amount. But a confession for the amount of a note described so as to be capable of being identified, or for a sum to be ascertained by calculation, would probably be good. Nichols v. Hewitt, 4 Johns. R., 423. f. The confession must also state how the indebtedness confessed, arose. tion for Form of Confession. [Title of Action.] I hereby, pursuant to the statute, confess judgment in this acdollars, the amount due the said plaintiff for money borrowed (or as the case may be), besides cost of suit; and consent that the said plaintiff enter judgment against me accordingly. g. When judgment is confessed for a sum exceeding $50, it will be void as against all persons, except the defendant and purchasers in good faith under the judgment, unless the above mentioned affidavit is made. 2 R. S., 342, ss. 115, 116. h. As the affidavit must expressly refer to the confession, the most convenient practice is to subjoin or annex it to the confession. Form of Affidavit. Town of $8. John Doe and Richard Roe, both of [insert residences and occupations of deponents] the parties named in the above [or] annexed confession of judgment, being respectively sworn, say, and each for himself says, that the said Richard Roe is honestly and justly indebted to the said John Doe, in the sum of dollars, over and above all just demands, which the said Richard Roe has against the said John Doe; and that said confession of judgment is not made or taken with a view to defraud any cred itor. i. If there is more than one plaintiff or defendant, the affidavit should, in strictness, be made by all of them. j. Actions cognizable before a justice may be brought against all town and county officers (2 R. S., 325, s. 6), individually specifying in the process and proceedings, their name of office; and such actions may be commenced in the same manner as against individuals. (2 R. S, 569.) Corporations may sue and be sued in justices' courts-Const., art. viii., 8, 3, and which also defines what is meant by the word corporations. Laws of 1847, p. 646, s. 45, amend the 5th subd. of s. 4, tit. 4, cap. 2, part 3, of the Revised Statutes, by striking out the words, or against corporations," and enact that— a. "Process against corporations may be issued as in other cases, and may be served on the presiding officer, secretary, cashier, treasurer, or any director or trus. tee thereof, by whatever name such director or trustee may be called;" and 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 Manuf. Co., 3 Code Rep., 223. b. Counties and towns are corporations. An action against a county must be brought against its supervisors; and process must be served upon the chairman or clerk of the board. An action against a town must be brought against it by its name, (2 R. S., 569, s. 109); where, however, county and town officers are authorized by law to sue by their name of office, suits may be brought by and against such officers. (1 R. S., 376.) c. A justice has jurisdiction of every person found in the county, whether a resident or not. Every action, however, must be brought before some justice of the town wherein either, 1. The plaintiffs, or one of them, reside; or 2. Where the defendants, or one of them, reside; or 3. Before some justice of another town, in the same county, next adjoining the residence of the plaintiff or defendant. (2 R. S., 325, s. 9). Except that where the defendant has absconded from his residence, the action may be brought before a justice of the town in which such defendant or his property may be, and d. If the plaintiffs be all non-residents of the county, or the defendant be a nonresident of the county, then such action may be brought before any justice of the town in which such plaintiffs or defendant may be. (2 R. S., 326, s. 10.) e. Where a suit was commenced in a justices' court by personal service of a summons, on the return day the plaintiff and defendant appeared; the plaintiff declared on a note for $100, the defendant consented that judgment might be rendered against him for that amount, and such a judgment was held valid, although there was no affidavit of the amount due, or confession in writing, or proof of the plaintiff's demand. Gates v. Ward, 17 Barb., 424. Such a case is not within this provision of the code. 54. [47.] No jurisdiction in certain cases.* 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. 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. Note to subd. 3. a. A justice of the peace has jurisdiction to try an action of trespass on the case for wilfully neglecting or refusing to issue an execution on a judgment recovered before the defendant as a justice of the peace. Van Vleek v. Burroughs, 6 Barb., 341. Note to subd. 4. When such proof is made, he is, thereupon, required to enter a judgment of discontinuance against the plaintiff, with costs. 2 R. S., 333, s. 55; 10 Wend., 559. See section 304, sub. 3 of this code. c. 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 payment on account of $250, the justice must give judgment for the balance. Ib. 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). d. 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. Payments on account are not in any proper sense items of an account in favor of a defendant. The account, although reduced by payments, is on one side only. Ward v. Ingraham, 1 Smith, 538. e. It is otherwise when the defence 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. Note to subd. 5. f. Executors and administrators may sue, but cannot be sued, in a justices' court; and if they sue, the defendant may plead a set-off if he have one, and if he prevail, may have 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., 333, s. 57.) g. An action against one of the obligors of a bond conditioned for his faithful execution of his duty as administrator, is an action against the defendant personally, and may be prosecuted in a justices' court. O'Neil v. Martin, 1 Smith, 404. $55. [48.] 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 defence, 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. h. See Cowen's treatise on justices' courts, vol. 1, pp. 463 to 469, and vol. 2, pp. 272, 273, as to when it may be said that title comes in question. i. 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. 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., 579). j. In an action of trespass for entering and taking away rock and stone from plaintiff's land, where the defendant by his answer admits the plaintiff's title, and alleges that he entered pursuant to a contract by which he was to blast and remove the rock to enable the plaintiff to erect houses on the land, 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. |