ices performed, or of tort for injuries committed on board vessels in the merchant service; subject however, in all respects, to the paramount authority of the United States' courts, in cases of admiralty or maritime jurisdiction.

The general provisions on the subject of these courts, are contained in title VI. of part I. of the code, and the boundaries of their jurisdiction are laid down in sec. 53, when read in connection with the provision of 65, above referred to, and also with those in reference to actions upon the charters or by-laws of the corporation of the different cities in which justices' courts are held, contained in the same and the two following sections.

The plan before laid down for the general scope of the work, forbids any lengthened discussion on the subject of this jurisdiction; but it may be shortly defined as limited, in ordinary cases, to causes of action where the value of the matter in dispute does not exceed $100, but as comprising a very general cognizance of controversies within that limit, save those only which, by sec. 54, are made the subjects of special exception. In actions on surety bonds taken by these courts in the exercise of their jurisdiction, their powers are of wider extent; and, in reference to the taking of judgments by confession, under the provisions of the revised statutes, those powers extend to all cases where the amount confessed does not exceed $250. A plaintiff cannot, however, split up an undivided demand into different actions for the purpose of conferring jurisdiction, though it would seem he may consent to reductions, or, on too large a recovery, may remit the excess for that purpose. It would seem, also, that by consent of the defendant, but not otherwise, a larger demand may be divided, in order to the confession of separate judgments for different portions of it.

By section 54, the following causes of action are excepted from the jurisdiction of these courts:

1. Cases to which the people are a party, except for penalties within the limitation above laid down.

2. Cases in which the title to real property shall come into question.

3. Civil actions for assault, battery, false imprisonment, libel, slander, malicious prosecution, criminal conversation, or seduction.

4. Matters of account where the sum total of the accounts of both parties to the controversy exceeds $400, and

5. Actions against executors or administrators as such. N. B.-Parties standing in these capacities are, however, competent to sue as plaintiffs, and the defendant, in that case, may plead, and if he prevail, may enter and enforce judgment for a set off, as in the higher courts.

With reference to No. 4, it might probably be held, that an action may be maintained in respect of a balance actually struck and settled, though the aggregate items of the accounts on which it arises exceed $400, provided no question arises on the accounts themselves as such. When, however, such is the case, and, it would seem, whenever the objection is formally taken, the court has no jurisdiction, however small the actual balance may be.-Lockwood v. Isaacs, 1 C. R. 29.

The mode of assertion of the defendant's claim to exemption from suit in these courts, where the title to real property may come into question, is pointed out by sections 55 to 59 inclusive. (The power given to the justice by sec. 62 to continue any personal causes of action, independent of those stayed on this account, will of course not be overlooked.) The course to be pursued, on this objection being taken, is the putting in of a written answer, showing such to be the case, accompanied by an undertaking, executed by one or more sufficient sureties, in a penalty of $100, conditioned for the giving a written admission of service of summons and complaint in the county court, in the event of the same being deposited with the justice within thirty days thereafter, such admission to be given within ten days from the time of that deposit; and conditioned also for the defendant's rendering himself amenable to all process of that court, in those cases where, at the time of giving the undertaking, he has already been arrested under the authority of the inferior tribunal. It would be prudent, on the preparation of an undertaking of this nature, to follow the rules hereafter laid down with reference to those required by the superior courts; but this does not appear to be imperative, but to rest in the discretion of the justice. In Davis v. Jones, 3 C. R. 63, it was held that the limitation of ten days in the above provision is absolutely imperative, and that the court above possesses no power of curing the defect by amendment, if the defendant, through ignorance of the deposit of the summons and complaint with the justice, (of which it would seem the plaintiff is not bound to give any notice,) omit to furnish

the required admission within the period so limited; the mere deposit of the summons not being a commencement of the action sufficient to give the court jurisdiction to exercise its general powers of amendment, under secs. 173 and 174.

On the delivery of the undertaking above described, the cause is to be discontinued before the justice, but, if the defendant omit to take this step, his jurisdiction is restored notwithstanding the answer, and the defence of title being in question will then no longer be admissible, unless that fact appear upon the plaintiffs own showing, in which last event the action cannot be maintained, but must be dismissed with costs; and it would seem that in such cases the justice cannot take cognizance of the cause even by consent. See Striker v. Mott, 6 Wendell

465.

The point as to whether title to lands does or does not come into question, appears to be cognizable by the justice in the first instance, where there is no reasonable doubt on the subject, but not where any such doubt exists. Whenever any real point of this nature arises, the case is likely to be one of difficulty, and can only be dealt with by the higher tribunal. The mere pleading of a grant of the legislature, in an action brought for the assertion of a public right, was held in Brown v. Scofield, 8 Barb. S. C. R. 239, (an action for damages for obstructing a navigable river,) as not, in its nature, a case of claim of title to lands sufficient to oust the justices' jurisdiction. The assertion of a private right of way has, however, been uniformly held to be a question involving title. See Striker v. Mott, above referred to; Boyce v. Brown, 3 How. 391; 7 Barb. S. C. R. 80.

It will be observed on a comparison of the Codes of 1849 and 1851, that the county court is now substituted for the supreme court, as the tribunal in which the action in lieu of that discontinued before the justice, is, for the future, to be brought in all cases. See, however, the error in printing sec. 68, before noticed.

On the bringing of such substituted action, the suit is in effect one in the county court, and judgment is to be entered on its decision as such. In one respect, however, the proceedings differ, and that is with reference to the pleadings. It was at first held that these must be the same as those before the justice, and that they could not be amended in matters of substance, and also that a reply could not be now put in, in such a suit

under any circumstances. See McNamara v. Bitely, 4 How. 44; Cusson v. Whalon, 5 How. 302; 1 C. R. (N. S.) 27; and Wendell v. Mitchell, 5 How. 424. In the last case it was, however, considered that, in matters of mere form, the court might permit an amendment, according to the old practice. See 19 Wend. 123.

The view taken in the above cases has, however, been controverted by those of Kiddle v. Degroot, 1 C. R. (N. S.) 202 and 272, and Jewett v. Jewett, 6 How. 185; the latter a decision of the general term; in both which cases it was expressly held that, although the same cause of action on the one hand, and the same ground of defence on the other, must be relied on, as in the justices' court, yet, with this limitation, the same forms of pleadings are applicable, and the same rules will govern, as in other cases in the court of higher jurisdiction. Such was also the case under the Code of 1848, Royce v. Brown, 7 Barb. S. C. R. 80, 3 How. 391,-and this view seems to be decidedly preferable.

For the purposes of appeal, proceedings of this nature will be held to be actions in a justices' court, and the court of appeals has accordingly no jurisdiction to review the decision of the supreme court thereupon.

A system of rules with reference to the pleadings and practice in these courts, is laid down by section 64 of the Code, which, in a great many respects, but not altogether, supersedes the provisions of the Revised Statutes in reference to these tribunals in general, including the proceedings therein, the removal thereof by certiorari, and the review of their decisions. The whole of those provisions must therefore be still made the subjects of careful study, in connection with those of the Code. They will be found in titles III. and IV. of chap. II. part III. of the Revised Statutes, 2 R. S. 224 to 275, and in various subsequent acts on the same subject, collected in the third edition, vol. 2, pages 323 to 373, and likewise at pages 708 and 709 of vol. 3. The recent organization of the marine court will be found in c. 144 of the laws of 1849, and its original constitution in the revised laws of 1813. C. 22 and 53 of the same year (1849), contain provisions with reference to the justices' courts of Rochester and Hudson; whilst c. 196 and 514 of the laws of 1851, have reference to those in the city of New York. In certain respects, such as the form of summons and other pro

ceedings not expressly provided for by the Code, the marine court and justices' courts of New York are governed by their own statutory practice, and not by that prescribed by the Revised Statutes in reference to justices' courts in general. See Williams v. Price, 2 Sandf. S. C. R. 229; Cohen v. Coit, 3 C. R. 23; Jackson v. Wheedon, 3 C. R. 186; Klenck v. De Forest, 3 C. R., 185, and other cases. In all matters, however, which are regulated by the provisions of the Code, those provisions are applicable to all, without distinction. See sec. 68.

The leading characteristics of the system thus established is the admissibility of oral and unverified pleadings in all cases, except where an answer of title being in question has been put in; coupled with the most unlimited powers of amendment and disregard of mere technical objections. By subdivision 15 of section 64, the provisions of the Code respecting the forms of and parties to actions, the times of commencing them, the rules of evidence, and the service of process on corporations, are made applicable to these courts; the last of these particulars being a provision on the recent amendments; but, in all other respects, as before adverted to, the practice in them is totally diverse from and irreconcilable with that of the higher courts, as established by that measure. It remains to notice some few decided points in reference to that practice, which may bear upon the exercise of the appellate jurisdiction of the courts above.

The jurisdiction of these courts being of a limited nature, is of course subject to the same strict rules before adverted to, under the head of county courts. The mere issuing of a summons however, prima facie, confers jurisdiction; and, if such summons be served within the limits of the authority of the court, the presumption will lie that it was duly served. If a warrant be issued, the reverse is the case, and the facts warranting its issue must all be strictly proved.-Barnes v. Harris, 4 Comst. 374.

The justices' courts have jurisdiction in actions against domestic, but none whatever in those against foreign corporations. This last objection is, however, capable of being waived, if the defendants appear and plead to the merits, without insisting on it.-Paulding v. Hudson Manuf. Co., 3 C. R. 223.

In the city of New York, where the jurisdiction of these courts is exercised with reference to the different wards of that city, the residence of one party within a ward is sufficient to