Judgment when accounts exceed $400. upon the trial of an action, the sum total of the of both parties, proved to the satisfaction of the juseeds four hundred dollars, judgment of discontinuance rendered against the plaintiff, with costs. 234, § 54. Answer of title. fendant may, either with or without other matter of set forth in his answer facts, showing that the title to erty will come in question. Such an answer must be g; and it must be signed by the defendant, or his attorgent, and delivered to the justice. The justice must, , countersign the answer, and deliver it to the plaintiff. $ 55. Undertaking thereupon. case specified in the last section, the defendant must er to the justice, with the answer, a written undertaking, by one or more sureties, approved by the justice; to that, if the plaintiff, within twenty days thereafter, with the justice a summons and complaint in a new the same cause, to be brought in the proper court, as in the next section, the defendant will, within twenty the deposit, give a written admission of the service Where the defendant was arrested in the action before e, the undertaking must further provide, that he will, és, render himself amenable to any mandate, which sued to enforce a final judgment in the action so to be If the defendant fails to comply with the undertaking, es are liable thereupon, to an amount not exceeding ed dollars. f § 56, am'd. n what court new action to be brought. t in which a new action is to be brought, as prescribed section, is the supreme court, or the county court of e's county, at the plaintiff's election; except that, justice is a justice of the peace of the city of Buffalo, perior court of Buffalo. hen action before justice to be discontinued. delivery of the undertaking to the justice, the action is discontinued, and each party must pay his own costs so paid by either party must be allowed to him, rs costs in the new action, to be brought as prescribed two sections. If the plaintiff fails to deposit with a summons and complaint in the new action, before ion of twenty days after the delivery of the underdefendant may maintain an action against the plaintiff is costs before the justice. fect of failure to give undertaking. lertaking is not delivered to the justice, he has jurise action, and must proceed therein; and the defendant , in his defence, from drawing the title in question. § 2956. When title comes in question on plaintiff's own showing. If, however, it appears, upon the trial, from the plaintiff's own showing, that the title to real property is in question, and the title is disputed by the defendant, the justice must dismiss the complaint, with costs, and render judgment against the plaintif accordingly. Co. Proc., 59. § 2957. Pleadings in new action. Undertaking before justice, when applicable. In the new action, to be brought after an action before a justice is discontinued, by the delivery of an answer and an undertaking, as prescribed in the last six sections of this act, the plaintiff must complain for the same cause of action only, upon which he relied before the justice; and the defendant's answer must set up the same defence only, which he made before the justice. If the action is to recover a chattel, which was re plevied in the justice's court, each undertaking, given in the justice's court, continues to be valid in, and is applicable to, the new action. Id., § 60. § 2958. Answer of title as to one of several causes of action. i Where, in an action before a justice, the plaintiff has two more causes of action, and the defence, that the title to re property will come in question, is interposed as to one or mor but not as to all of them; the defendant may deliver an answe and undertaking as prescribed in sections 2951 and 2952 of this act, with respect to the cause or causes of action only, in which title will so come in question. Whereupon the justice must discontinue the action as to those causes of action only; the plaintiff may commence a new action therefor in the proper court; and the original action must proceed as to the other causes Id., part of § 62. 848 TITLE IV. edings between the joinder of issue and the trial. Adjournment by justice. Adjournment on application of plaintiff. Id.; undertaking thereupon, Undertaking to procure discharge of defendant from custody. Subsequent adjournments. Justice may impose conditions upon adjournment. Adjournment when warrant to attach absent witness is issued. Adjournment not to exceed ninety days. Adjournment by justice. time of the return of a summons, or of the joinder of hout process, but at no other time, the justice may, in tion and upon his own motion, adjourn the trial of the I more than eight days, unless the defendant has been in which case, no such adjournment shall be made. 38, §§ 67, 68 (2 Edm. 254). Adjournment on application of plaintiff. ime of the return of a summons, or of the joinder of hout process, the justice must, upon the application intiff, adjourn the trial of the action, not more than to a time fixed by the justice. But such an adjournI not be granted unless the plaintiff or his attorney, if y the defendant, makes oath that the plaintiff cannot, of some material testimony or witness, specified by y proceed to trial. f 88 69 and 70 (2 Edm. 254, 255). djournment on application of defendant. me of the joinder of issue, the justice must, upon the of the defendant, adjourn the trial of the action, omplying with the following requirements: lefendant or his attorney must, if required by the r by the justice, make oath that he verily believes efendant has a good defence to the action, and that safely proceed to trial for want of some material or witness, specified by him. ired by the plaintiff, and the defendant has not been the action, an undertaking must be given to the behalf of the defendant, as prescribed in the next ut such an undertaking need not be given, where the recover a chattel. adjournment must be for such a reasonable time, e justice, as will enable the defendant to procure the r witness. oilage 'tunbaotoh si enban boutolo ono wood and tint ad § 2962. Id.; undertaking thereupon. The undertaking prescribed in the last section must be executed by one or more sureties, approved by the justice; and must be to the effect that, if the plaintiff recovers judgment in the action: and if, before the expiration of ten days after the plaintiff becomes entitled to an execution upon the judgment, the de fendant removes, secretes, assigns, or in any way disposes of any part of his property, liable to levy and sale by virtue of an execution, except for the necessary support of himself and his family, and if an execution upon the judgment is returned wholly or partly unsatisfied; the sureties will, upon demand. pay to the plaintiff the sum due upon the judgment. L. 1831, ch. 300, § 40 (4 Edm. 474). § 2963. Undertaking to procure discharge of defendant from custody. Where the defendant has been arrested, the trial must be adjourned upon his application, upon the same terms, and in the same manner, as where he has not been arrested; except tha the undertaking prescribed in the last section need not be given. A defendant, who procures such an adjournment, mus continue, during the time of adjournment, in the custody of the constable; unless he gives an undertaking to the plainti with one or more sureties, approved by the justice, to the effect that, if the plaintiff recovers judgment in the action; and if a execution is issued thereupon against the person of the defendant within ten days after the plaintiff is entitled to the same; a if a return is made thereto, on or after the return day there that the defendant cannot be found; the sureties will pay to the plaintiff the amount due upon the judgment. If such an undertaking is given, the defendant must be discharged from custody 2 R. S. 239, 240, part of §§ 71, 77 and 76 (2 Edm. 255). § 2964. When defendant to be discharged. If the trial of an action, in which the defendant has been arrested, is adjourned with the consent of both parties, or up the application of the plaintiff, the defendant must be discharge from custody. Id., § 72. § 2965. Subsequent adjournments. The justice must, upon the application of the defendan grant a second or subsequent adjournment of the trial of the action, upon the defendant's giving security, if required, prescribed in the foregoing provisions of this article, where applies for a first adjournment; and upon his proving, by his o oath or otherwise, to the satisfaction of the justice, that be cannot safely proceed to trial for want of some material test mony or witness; and that he has used due diligence to obta: the testimony or witness. But if the defendant has given " undertaking upon a former adjournment, a new undertaking nee not be given, unless it is required by the justice, or by the sur ties in the former undertaking. Id., § 75. § 2966. Justice may impose conditions upon adjourn. ment. Upon granting the defendant's application for an adjournment where the trial has been once adjourned, or where the plur resident of the county, the justice may, in his discretion, plaintiff's application, direct that any witness on the the plaintiff, who is in attendance, be then examined th before the justice. Thereupon the testimony of the must be reduced to writing, certified by the justice, and by him; to be read upon the trial, with the same effect, ect to the same objections, as if it was then given orally itness. 39, 240, § 70. Adjournment when warrant to attach absent wit ssued. upon a trial, a warrant of attachment is issued to comttendance of a witness, who has failed to appear in to a subpoena, the justice may, in his discretion, adtrial, for such a time as he deems necessary for the the warrant, not exceeding five days. Adjournment not to exceed ninety days. 1 of an action shall not be adjourned to a time beyond s from the joinder of issue, without the consent of both cept in one of the following cases: e a venire has been duly issued, but a jury has not red, so that it is necessary to issue a new venire, or n one or more talesmen, the trial may be adjourned, than two days beyond the ninety days, in order to jury to be procured. e a jury has not been able to agree upon a verdict, charged, the trial may be adjourned a sufficient time ninety days, to enable a new jury to be procured, as in title fifth of this chapter. a warrant of attachment has been issued to compel ance of a witness, as prescribed in the last section, or has been issued to commit a recusant witness, as pretitle fifth of this chapter, an adjournment made thererescribed by law, is not deemed a part of the ninety |