ye west found in the county whether a resident nas à progen: before some justice of the town

war the same county, next adjoining the 41. à 325. sec. 9.) Except that where Tubers the action may be brought before a Machining I DE Property may be, and

L the county, or the defendant be a may be brought before any justice wear may be. (2 R. S. 326, sec. 10.)

* certain cases.—But no justice mance of a civil action,

ens State are a party, excepting eundred dollars:

real property shall come in quesjus 55 to 62, both inclusive:

for an assault, battery, false im, malicious prosecution, criminal con

... account, where the sum total of the ...proved to the satisfaction of the justice,

...ured dollars:

"

the peace has jurisdiction to try an action of trescung or refusing to issue an execution on a judgu as a justice of the peace. Van Vleek v.

fis made he is, thereupon, required to enter a no plaintiff, with costs. 2 R. S. 333, s. 55, of this code.

and unliquidated, (2 Cow. 413,) thus if the And the defendant payment on account, of the balance. Ib. But if instead the defend$250, the justice must have dismissed instrators may sue but cannot be sued in a may plead a set-off if he have one, and if naintiffs in their representative character, to be paid in the course of administra

--In every action brought in a where the title to real property ndant may, either with or withset forth in his answer, any matttle 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.

This and the following sections relating to this subject, are taken with some slight modification from 2 R. S. 231, 257, ss. 59 to 66.

It is presumed, notwithstanding this provision, that upon the delivery of the undertaking the action shall be discontinued. A discretion is vested in the justice to decide whether the matter of defence set forth in the answer does in fact show that title will come in question, and that if he is of opinion, that the answer tendered does not show that title will come in question, he may proceed in the action. If such a discretion is vested in the justice, it becomes material to inquire when it will be considered that title comes in question.

In Cowen's treatise on justices' courts, vol. 1, pp. 463 to 469, and vol. 2, pp. 272, 273, will be found the best existing, although very imperfect answer to the question. When may it be said that title comes in question?

§ 56. [49.] (Amended.)—Undertaking to be given.—At the time of answering, the defendant shall deliver to the justice a written undertaking, executed by at least one sufficient surety, and approved by the justice, to the effect, that if the plaintiff shall, within thirty days thereafter, deposit with the justice a summons and complaint in an action in the county court for the same cause, the defendant will, within ten days after such deposit, give an admission in writing of the service thereof.

Where the defendant was arrested in the action before the justice, the undertaking shall further provide, that he will, at all times, render himself amenable to the process of the court during the pendency of the action, and to such as may be issued to enforce the judgment therein. In case of failure to comply with the undertaking, the surety shall be liable, not exceeding one hundred dollars.

The amendment to this section is the insertion of the word "county" for the word" supreme."

Where a defendant omitted, within the prescribed time, to admit service of a summons and complaint deposited by the plaintiff with a justice of the peace in pursuance of this section, and upon the plaintiff bringing an action upon the undertaking of the defendant, deposited with the justice, the defendant moved in the supreme court for leave to admit service of the summons and complaint, and to stay plaintiff's proceedings on the undertaking; held, that the court had no power to grant such relief. There was no action pending until the service of the summons (§ 137.) consequently the court had no jurisdiction. Davis v. Jones, 3 Code Rep. 63. 4 Pr. R. 340. It seems that it it is not necessary for the plaintiff to give notice to the defendant, of the deposit of the summons and complaint with the justice, but the defendant is bound to ascertain for himself the fact of the same having been deposited, at the peril of losing his right to answer. Ib.

Upon the code of 1848, sec. 49, which was indentical with sec. 56, of the code of 1849, the question arose whether in the action commenced in the supreme court, it was necessary or proper for the plaintiff to put in a reply, and it was held that a reply was necessary. Royce v. Brown, Pr. R. 391. But:

19, that the case of Royce v. Brown were tcle is set up in a justice's court by ounty court, for the same cause a reply «nu i put in, will be struck out on motion, 3. H.

me different rules of pleading which as under the code of 1849 a reply in a

__, ar both, in such a suit, should allude a averment. Ib.

na the defendant should join in the unse undertaking should be under seal, but con on its face for the making thereof,

he surety, and be acknowledged by of $200. It does not appear to be Sauty, as that is fixed by the statute. tis presumed, remain in the custody of justice may deliver it to the plaintiff.—

me 76 of the rules of the supreme court, practice in justice's courts, it is probable escribed by that section and that rule, a case of two actions, and two undertakrety would have to justify to the amount

-to be used:

dertaking.

Justice.

Taintiff.

fore 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 county 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.

The amendment of this section consists of the substitution of the word “county” for the word "supreme."

§ 58. [51.] 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 defence, from drawing the title in question.

59. [52.] 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.

The law was the same before the code, (2 R. S. 237, s. 63,) per Willard, J., in McNamara v. Bitely, 4 Pr. R. 44, and see note to section 55 of this code.

Where it appears on the trial from the plaintiff's own showing, that the title to real property is in question, and such title shall be disputed, the parties, by consenting that the justice shall adjudicate on the disputed title, do not confer jurisdiction. Striker v. Mott, 6 Wend. 465.

§ 60. [53.] (Amended.)—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 fifty-five, fifty-six and fifty-seven, the plaintiff may prosecute an action for the same cause in the county 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 defence only which he made before the justice.

The amendment is the substitution of the word "county" for the word supreme," and the words "shall set up the same defence only" for the words "shall be the same."

On a new action being brought, this section obviously contemplates that the complaint and answer shall be as before the justice, without any further or additional pleading, per Willard, J., in McNamara v. Bitely, 4 Pr. R. 44, and the plaintiff cannot amend his answer in the county court, of course. Cusson v. Whalon, 5 Pr. R. 302, 306. But might it not be amended by leave of the court? In Wendell v. Mitchell, 5 Pr. R. 424, Hand, J., says a party may put his pleadings below in proper form after removal, or however inartificially drawn, the court may treat them as in proper form, but they cannot be amended in matters of substance.

action, or the defendant sets up a e justice, the proper remedy ng, and require it to be conght, 15 Wend. 240. Tuthill s restricted to the same cause of Form, and his complaint in the at, although it may differ from test is, does it state the same Wend. 123. A similar rule, asf it state the same ground of answer before the justice will Mitchell, supra.

unty court is an action originally rginally commenced in a court of R. 223. For the importance of and see note to sections 56 and 62.

-If the judgment in the shall recover costs; if it be - costs, except that upon a e plaintiff, unless the judge erty came in question on the

ard"county" for the word "supreme." section 274 of this code.

wer of title as to one cause of justice, the plaintiff have which the defence of title d, and as to such cause the er an undertaking, as proty-six, the justice shall dishat cause, and the plaintiff erefor in the county court. the justice may continue his

2. consist merely in the substitution in supreme."

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...ments, and effect thereof.— and of a party in whose ment, shall give a tranand docketed in the office of judgment was rendered. raascript by the clerk shall be Jocket; and, from that time,