confer jurisdiction; but where both are non-resident, the objection will be fatal, and cannot be waived.-Murphy v. Mooney, 2 Sandf. S. C. R. 288; Cornell v. Smith, Id. 290.

The summons must state on its face the cause of action, or no jurisdiction is conferred, and it will be held to be a nullity.Ellis v. Merritt, 2 C. R. 68; Cooper v. Chamberlain, 2 C. R. 142. It must not be for a shorter term of notice than that prescribed by statute. King v. Dowdall, 2 Sandf. S. C. R. 131, and the service of it must be properly and duly authenticated.-Manning v. Johnson, 7 Barb. S. C. R. 457. The two last defects will, however, be waived by appearance, and answer without objection.-Heilner v. Barras, 3 C. R. 17.-Robinson v. West, 1 Sandf. S. C. R. 19.

Objections in the nature of a demurrer must be raised by the pleadings, or they cannot be taken afterwards, Jackson v Wheedon, 3 C. R. 186. On the same principle a plea of the general issue was held to be sufficient on which to ground the introduction of any testimony at the trial, where no objection was made to it for want of certainty, at the time of the joinder of issue.-Durfee v. Eveland, 8 Barb. S. C. R. 46.

A plea of payment or set off in these courts, is an admission of the plaintiff's case, nor can the latter be contested under such circumstances, if the defence on the above grounds fails. De Courcy v. Spalding, 3 C. R. 16; Young v. Moore, 2 C. R. 143. In Everitt v. Lisk, 1 C. R. 71, a refusal to answer was held to be an admission of the plaintiff's claim, and to preclude the defendant from his right to a cross examination. This decision was, however, under the Code of 1848, prior to the establishment of the present rules by sec. 64.

The plaintiff cannot take judgment by default, without proving his case, Muscott v. Miller, 6 L. O. 423; Smith v. Falconer, 1 C. R. 120; 2 Sandf. S. C. R. 640 ; a point indeed clear on the terms of the section itself. Nor can he, under any circumstances, take judgment for an amount greater than that mentioned in the summons, Partridge v. Thayer, 1 C. R. 85; 2 Sandf. S. R. R. 227. A judgment taken on the plaintiff's default to furnish a bill of particulars was held to be bad, under the Code of 1848, in Winslow v. Kierski, 2 Sandf. S. C. R. 304, but the amended measures contain special provisions on this subject.

In Mills v. Winslow, 3 C. R. 44, it was held that an action on the judgment of an assistant justice's court, brought without

the leave prescribed by sec. 71, could not be maintained, the judge treating those courts, and also the marine and assistant justices' courts of New York, as not within the definition of

courts of a justice of the peace;" see also Cohen v. Coit, 3 C. R. 23. In McGuire v. Gallagher, 2 Sandf. S. C. R. 402, 1 C. R. 127, a contrary view is taken on this point, and it was also held that the restrictions in sec. 71 are in no manner retrospective, in relation to causes of action accrued before the passage of the Code.

The ordinary principles of law with reference to the regular conducting of a trial by jury, are applicable to those taking place in these courts. In Bell v. Davis, 8 Barb. S. C. R. 210, a judgment was accordingly reversed because the minutes of counsel had been laid before the jury. Where, however, at the request of the parties, the justice went into the jury room, while they were deliberating on their verdict, a consent that he should read certain testimony to them was implied; Hancock v. Sulmon, 8 Barb., S. C. R. 564; nor will the due exercise of the justice's discretion on the trial be interfered with, as, for instance, his refusal to allow additional evidence to be taken after a motion for a non-suit, Reed v. Barber, 3 C. R. 160.

In these courts, the strict rules which bind the judges of the higher tribunals, do not prevail; and therefore the partner or clerk of the justice, may practice before him.-Fox v. Jackson, 8 Barb. S. C. R. 355.

The judgments of these courts are enforceable by process issued under their authority, according to the powers conferred on them by the Revised Statutes, (such powers embracing that of arrest in many cases), but those judgments are not liens upon real estate, unless transcripts of them are docketed in the office of the clerk of the county, as prescribed in sec. 63, and unless for sums exceeding $25. The delivery of such a transcript on the part of the justice, is compulsory, and may be enforced by mandamus. From the time of docketing, they become in effect judgments of the county court, and are in all respects enforceable as such. It would seem, however, that in one respect they acquire no greater weight by this process, but still remain on the footing of judgments of inferior courts; and that the lien on them, unless revived, will accordingly cease at the expiration of six years.-Young v. Remes, 4 Barb. S. C. R. 442. See 2 R. S. 359, sec. 5. As regards the statute of limita

tions, however, all judgments whatever seem now, by sec. 90 of the Code, to be placed on an equal footing. The transcript must correspond with the judgment in all respects, or the docketing will be void, nor can any material variance be either amended or disregarded by the court above.-Simkins v. Page, 1 C. R. 107. A defect in the issuing of execution, on the ground that the judgment had not been properly docketed, was, however, held in Roth v. Schloss, 6 Barb. S. C. R. 308, to be amendable, and the judgment was there allowed to be docketed nunc pro tunc.

The appeal from all these tribunals lies, as before stated, to the county courts, or, in New York, to the court of common pleas of that city.

BOOK II.

OF ACTIONS GENERALLY CONSIDERED.

CHAPTER I.

OF ACTIONS IN GENERAL

THE following are the definitions of the Code on this subject: Section 1. Remedies in the courts of justice are divided into : 1. Actions;

2. Special proceedings.

§ 2. An action is an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offence.

§ 3. Every other remedy is a special proceeding.

§ 4. Actions are of two kinds :

1. Civil;

2. Criminal.

§ 5. A criminal action is prosecuted by the people of the state, as a party, against a person charged with a public offence, for the punishment thereof.

§ 6. Every other is a civil action.

§ 7. Where the violation of a right admits of both a civil and criminal remedy, the right to prosecute the one is not merged in the other.

These provisions are, in substance, little more than declaratory of the old and inherent distinctions between ordinary and special proceedings, and likewise between those appertaining to civil in contradistinction to criminal jurisdiction. With the exercise of the latter, the Code, as it now stands, has no concern, and therefore the subject may be at once and permanently dismissed, merely drawing the reader's attention to section 7,

above cited, under which, both civil and criminal proceedings are capable of being taken in conjunction with each other, in relation to the same act, or state of circumstances.

The boundaries between ordinary actions and special proceedings are less capable of accurate definition, and many of the measures which will hereafter be treated of in connection with the due prosecution of the former, are perhaps, strictly considered, rather of the latter nature; as, for instance, proceedings supplementary to execution (See Davis v. Turner, 4 How. 190; Dunham v. Nicholson, 2 Sandf. S. C. R. 636), and other similar steps in the ordinary assertion of the remedies obtainable by action. In practice, however, this distinction is unimportant.

There exists, likewise, in relation to real estate, a certain class of proceedings of a mixed nature, and which may be originated and carried on either in the form of an action, or in that of a special proceeding, and under the forms of either the old or new practice, at the election of the parties. Of this nature are proceedings for partition.-See Watson v. Brigham, 3 How. 290; Backus v. Stilwell, 3 How. 318, 1 C. R. 70; Traver v. Traver, 3 How. 351; Myers v. Rasback, 4 How. 83, 2 C. R. 13; Row v. Row, 4 How. 133,-and various other cases subsequently cited under that head; and likewise those for the admeasurement of dower,-see Townsend v. Townsend, 2 Sandf. S. C. R. 711. Proceedings to compel the determination of conflicting claims to real property, would seem, however, not to fall within this class, but to belong to that of strictly special proceedings, notwithstanding the provisions of the Code to the contrary in section 449-Crane v. Sawyer, 5 How. 372, 1 C. R. (N. S.) 30.

The different special proceedings which may be taken during the ordinary course of an action, will be treated of in due course in connection therewith; and those prescribed by the code itself in reference to the preliminary settlement of controversies, will form the subject of an introductory chapter. The remedies unconnected with the ordinary progress of a suit, and obtainable under special statutory provisions, will be shortly noticed at the conclusion of the work; but, in accordance with its general plan, they will not be entered upon in detail, inasmuch as they are governed in all respects by the