was decided, that in a suit in a justices' court, on its appearing that a party who has been arrested on a warrant for the recovery of damages for the non-performance of a contract was not under the act to abolish imprisonment, subject to arrest; it is the duty of the justice to dismiss the proceedings, although they were originally instituted on proof that the defendant was a non-resident-the fact appearing that he was a resident of the county for more than thirty days before the warrant was issued.

In Pope agt. Hart, 23 How., 218. 45 Barb., 630, General Term, January, 1862, BALCOM, J. it was decided, that in an affidavit for a warrant by a justice of the peace, all a person need state as to having a cause of action for a tort or wrong, is, that he believes that he has a cause of action against the defendant, and then set out when and how he claims it arose, so that it may seem to be ex-delicto. It is not necessary to swear positively as to the cause of action.

27. Q. What is a sufficient indorsement upon a process for the recovery of a penalty?

A. In Avery agt. Slack, 17 Wend., 85, General Term, May, 1837, CowEN, J., it was decided, that in an action for a penalty for a violation of the excise law, an indorsement upon the process in these words "according to the act of the internal police of the state,' is not a compliance with the statute, requiring that upon process for a recovery of a penalty shall be indorsed a general reference to the statute giving the action. The number of the title, if not the particular section under which the suit is brought, should be specified.

In Andrews agt. Harrington, 19 Barb., 353, General Term, March, 1855, WELLES, J., it was decided, that a summons, issued by a justice of the peace, in an action brought to recover penalties for violations of the excise law, indorsed "issued according to the proceedings of title nine, chapter 20, part first of the Revised Statutes, was a substantial compliance with the statute, (2′ R. S., 481, § 7,) which uses the word "provisions, "instead of "proceedings."

In Marselis agt. Seaman, 21 Barb., 319, General Term, January, 1856, BOCKES, J., it was decided, that an indorsement upon a summons issued in an action brought against a toll gatherer on a plank road, to recover a penalty for demanding and receiving more toll than by law he was authorized to collect, which states that the process is issued according to the provisions of the statute concerning the incorporation of turnpike and plank-road companies, and the collection of penalties for demanding and receiving more than lawful toll, in passing through toll-gates on such roads," is a sufficient compliance with the requirements of the statute.

In Perry agt. Tynen, 22 Barb., 139, General Term, May, 1856, PAIGE, J., it was decided that, in an action in a justice's court, to recover penalties for violation of the excise law, it is a sufficient indorsement of the summons where it states that such summons is issued "according to the provisions of title 9, part 1, chapter 20 of the statute of excise and the regulation of taverns and groceries." It is only required by this section that a general reference to the statute which gives the action shall be indorsed; and where, as in this case, the reference was to the title, which is not subdivided into articles, it is sufficient.

In The Board of Commissioners of Excise of Saratoga County agt. Dougherty, 16 How., 48, Saratoga County Court, December, 1857, McKEAN, J., it was decided that a summons indorsed as follows: "This summons is issued according to the provisions of section 13 of an act entitled 'An act to suppress intemperance, and to regulate the sale of intoxicating liquors,' passed April 16, 1857," is amply sufficient.

What is the result of the decisions under this section?

1. As to the genera! statutory powers of justices of the peace, not repealed by the Code, see the sections of the statute in answer to Question 3.

2. (3 Q.) A justice of the peace has jurisdiction by long summons, over persons in the county, only when they reside in his own town or adjoining his own town, or where the plaintiff resides in the same town with the justice, or an adjoining town.

3. No presumption will be indulged in order to oust a justice of the peace of jurisdic tien, where enough is shown to bring the case within the general language of the statute which confers the jurisdiction.

4. That part of the statute which contains a limitation of the general jurisdiction of a justice of the peace, conferred by statute, must be considered as in the nature of an exception in a statute; to obtain the benefit of which, it must be pleaded by the party seeking to bring himself within its provisions.

5. The mere request of a plaintiff for a long summons is all that is required, and is sufficient authority to give jurisdiction of the person of the defendant.

6. It seems that a person having no legal residence anywhere may be sued by long summons; that process being appropriate unless the defendant is a non-resident of the county.

7. Where a justice of the peace renders judgment in a case where he does not reside in the same town, nor in an adjoining town, with either of the parties, and there has been no waiver of the error, a certiorari would lie before the Code, to reverse the judgment for error in fact. (Such error is now reviewed by appeal, and upon affidavits.) The justice has no jurisdiction to try the cause, and the defendant is not bound to appear and object to the jurisdiction by plea in abatement.

8. Where towns corner together, although they do not otherwise touch each other, they are to be deemed adjoining towns within the meaning of the statute prescribing the jurisdiction of justices of the peace.

9. Where a defendant has absconded from his residence, the action may be brought before a justice of the town in which the defendant or his property may be.

10. When the plaintiffs are all non-residents of the county, or if the defendant be a non-resident of the county, the action may be brought before any justice of the town in which such plaintiffs or defendant may be.

11. (4 Q.) A justice of the peace cannot delegate any part of his official power or authority to another; but he may depute another to do a specific act, without vesting in him any discretion; to deliver to a party a summons, signed by him, in blank, to be filled up in his presence, and under his control, but not to be filled up out of the presence of the justice.

12. (5 Q.) The statutes prescribing that "no judge of any court can sit as such in any cause in which he is a party, or in which he is interested, or in which he would be excluded from being a juror by reason of consanguinity or affinity to either of the parties," and that "no judge of any court shall have a voice in the decision of any cause in which he has been counsel, attorney or solicitor, or in the subject matter of which he is interested," are applicable to justices of the peace, and to courts held by justices of the peace. And a nominal party to an action comes within the prohibition of the statute equally with a party in interest.

13. A justice of the peace who is a justice of the sessions and who is one of the superintendents of the county poor, cannot be a party to an action brought by the superintendents upon an order made by the court of sessions for the maintenance of a poor person.

14. It appears to be settled that a stockholder in a corporation, is a party to a suit brought against such corporation. And a justice of the peace cannot sit as such in a cause to which a corporation is a party, if he be related to a stockholder in such corporation.

15. A justice of the peace who had rendered a judgment in an action, and had been counsel for the plaintiff in a suit before another justice for the same matters declared before himself, was held disqualified from sitting in the action. So all the acts of a justice of the peace who is related to either of the parties in an action brought before him are coram non judice and of no effect whatever.

16. (6 Q.) As to the provisions of the Revised Statutes for commencing actions in justices' courts. See the answer to the 6th question above.

17. A summons is the ordinary process of a justice's court, and issues on the mere sug gestion of the plaintiff. But the process of warrant or attachment is extraordinary, and can issue only on a special application and upon proof required by law.

18. The authority of a justice of the peace to issue a long summons on the request of the plaintiff, is as ample as to issue a warrant or attachment upon a special application and proof required by law,

19. A person having no legal residence any where, may be sued by long summons. That process is appropriate unless the defendant is a non-resident of the county.

20. Where a court has authority to issue process, it acquires jurisdiction of the person

of the defendant prima facie, by a personal service of that process upon him in the manner required by law.

21. Where from the return of a justice of the peace no fact appears anthorizing him to issue a summons, returnable in two days, it will be held prima facie that a summons thus issued was without authority. It cannot be inferred that the defendant was a non-resident of the county, where there is no fact stated in the return to warrant that supposition. Where the defendant is a non-resident of the county, and the plaintiff is also a non-resident, he is not entitled to a short summons without proof of that fact, and giving the security required in such case.

22. To authorize a justice of the peace to issue a summons returnable in two days under section 33 of the non-imprisonment act, and to acquire jurisdiction he must be furnished with the same proof of the non-residence of the defendant as was required by the provisions of the Revised Statutes to authorize the issuing of a warrant against such defendant; together with an affidavit stating that the action is one arising on contract, according to the provisions of section 31 of said act.

23. A justice's court or the marine court of the city of New York acquire no jurisdiction of a canse where the defendant, being a non-resident is sued by a summons returna. ble more than four days after its date, or served more than two days before the return day.

24. To authorize a justice of the peace to issue an attachment against a defendant there must be an affidavit proving the grounds on which the application is founded, in all cases, not excepting that of a non-resident.

25. (7 Q.) A justice's court acquires jurisdiction of an action against a railroad corpoation by the issuing and service upon it of a long summons. In cases of corporations no provision is made by statute for process by warrant or attachment or short summons. A railroad company, whose road passes through two or more counties, may be sued before a justice of the peace in either county, provided the process can be served on the proper officer in such county. But a summons, returnable within three days from its date is a nullity. A justice has no jurisdiction over the corporation as a non-resident.

26. (8 Q.) By the issuing of a long summons by a justice of the peace, and its service and return on a non-resident defendant, the justice acquires no jurisdiction over the person of the defendant, and a judgment rendered in such case is void.

27. (9 Q.) As to the provisions of the Revised Statutes prescribing the contents of a summons from a justice's court, see the answer to this Q. 9.

28. (10 Q.) On the service of a summons, the officer must specifically state the time and manner of the service, and the appearance of the defendant in order to object to the return is not a waiver of any irregularity in the return.

29. The return on a summons from a justice's court "personally served," and stating the time when is sufficient.

30. If the plaintiff is himself a constable or specially deputed for the purpose, he may serve his own summons.

31. Fractions of a day are not regarded in the computation of time in the service of process, therefore a summons in a justice's court, returnable in the forenoon of the eighth day of a month is well served in the afternoon of the second day of the same month.

32. Where a constable returns a summons "served by copy," without stating whether it was a personal service by copy, or by leaving a copy, the return will be held sufficient in a collateral action.

33. A proper service of a summons from a justice's court, upon one of several defendants, and a proper return of such service, is sufficient to authorize the justice to proceed and render judgment in form against all the defendants.

34. A return, showing proper service upon one defendant, without negative additions explaining how the summous was served. or why it was not served upon the others, is sufficient.

35. Where a summons is issued according to the provisions of a certain statute, and is

so indorsed upon it by the justice who issues it, there is nothing requiring the constable to return that he has served the indorsement, unless the return "personally served," written on the summons, is presumed to refer to both the summons and the indorsement. 36. Where a summons, issued and indorsed under a particular statute, is returned by the constable "personally served on this -th day of, 18-," signed by him, it is sufficient. It is not necessary to serve a copy of such summons unless it is demanded. 37. It must be presumed that the service of a summons is made in the proper county, for it is the duty of the constable to do so.

38. It is necessary that a summons served upon a defendant should set forth the time and place for his appearance.

39. It is necessary that the time of the service of a summons shall be stated by the constable in his return.

40. A constable's return that he has served the summons "by copy," without stating how the copy was delivered, is sufficient.

41. The return of a summons "personally served," and stating the time when, is sufficient.

42. The return of a constable on an attachment, that "he delivered to each of the defendants, personally, a copy of the attachment," is prima facie sufficient, without stating that the copies were certified by him.

43. Where a return of a constable is indorsed by his direction, and in his presence, upon the summons, by the justice who issued it, it is sufficient evidence of its service to support the jurisdiction of the justice, when questioned collaterally.

44. The return of a constable, certifying the time and manner of his serving a summons upon the defendant, is presumptive evidence of what it states.

45. Where the statute designates one or more officers of a corporation upon whom process against it may be served, the return of the constable is presumptive evidence of the official character of the person served.

46. Personal service of a summons upon a managing agent of a railroad corporation is personal service upon the corporation; and where the constable's return shows such service, the justice has jurisdiction.

47. The return of a constable of personal service on a summons is conclusive of that fact, and cannot be impeached collaterally, or by the defendant offering to show that the had summons not been served.

48. (11 Q.) Joint debtors may be sued by a long summons, though one of them be a nonresident; and a justice of the peace in the city of New York acquires jurisdiction in such case, though the non-resident debtor only is served, where the plaintiff is a resident of his district.

49. In an action by attachment against two persons as joint debtors, where the property of both are attached, the justice does not acquire jurisdiction where the return of the constable shows a service of the attachment only on one of the defendants, and is silent as to the service on the other.

50. Where a summons is issued against several persons as joint debtors, a valid service upon one, and a proper return of the service by the constable, is sufficient to give the justice jurisdiction to render judgment in form against all the defendants.

51. The service of a summons upon one member of a co-partnership firm does not authorize a judgment against all, by proving that the services were rendered for the firm, and that the defendant served was a member of it, without proving who were the other members of the firm.

52. It has been decided (by a county court) that the 136th section of the Code is not made applicable to justices' courts; that the old rule is still applicable where, in an action against several defendants upon a joint or joint and several contract, if the plaintiff elect to bring his action against all the defendants, he must recover as to all or fail as to all, except where there is a defense personal to any of the defendants.

53. Where process is served on, and judgment rendered against, one joint debtor only,

the plaintiff may commence an action against the other joint debtor alone, for the same indebtedness. And this practice under the Code is applicable to justices' courts.

54. (12 Q.) Justices' courts possess the same powers, as to amendments, as courts of record, and are required to allow amendments liberally, especially in all cases where the rights and interests of the adverse party will not thereby be put in jeopardy.

55. The Revised Statutes expressly allow amendments to be made in justices' courts at any time before judgment. Under the Code, they may be made after as well as before judgment.

56. A justice of the peace may allow an amendment of a constable's return; and such amendment does not depend upon the appearance of the defendant in the suit.

57. A justices' court has authority to allow an amendment of a complaint for conversion of personal property, to a complaint for a mere breach of contract.

58. A justice of the peace has power to amend a summons by inserting the plea or cause of action therein, if that is necessary.

59. A justice of the peace has no power to amend an answer, so as to add a new defense after the trial is commenced.

60. (13 Q.) Whether under the Code, the summons issued from a justices' court, should contain a statement or not of the nature or cause of action, is a question upon which the authorities seem to be nearly equally divided.-That such statement was required by the Revised Statutes in relation to justices' courts, and other statutes relating to the justices' and district courts in the city of New York, is admitted; but it is said by the authorities in the negative, that the Code having abolished all the forms of pleading heretofore existing, and all the names of actions, and substituted therefor a civil action, the form of the summons prescribed by the Revised Statutes has become obsolete. On the contrary, it is contended that the form of a summons in a justices' court is not governed by the provisions of the Code prescribing the form of a summons. Those provisions relate to actions in other courts. That the provisions of the statutes requiring such statement in the summons has been in no manner altered or repealed by the Code. (It would seem that the latter view is the correct one; for it is not required to state the name of the action.-such as trespass, trespass on the case, trover, &c., which names are undoubtedly abolished by the Code, but to state enough of the nature or cause of action, to prima facie sustain the jurisdiction of the justice-ED.)

61. A summons which required the defendant to appear at a certain time and place "to answer the complaint of Cornelins Cooper to his damage one hundred dollars or under,” held not a statement of a cause of action.

62. A statement in the summons requiring "the defendant to answer the complaint of the plaintiff for professional services" was held sufficient.

62§. (14 Q.) At an early day it was held, that if the parties appeared before a justice of the peace by attorney, it was error, though by mutual consent-being contrary to an express statute.

63. The acts relating to assistant justices' courts in the city of New York and kindred acts for the recovery of small demands, did not recognize attorneys at law as such.

64. Although a defendants wife, as such, is not authorized to appear for him in a suit before a justice, yet where she appears and pleads, and employs counsel, amends the pleadings, &c., the justice is warranted in inferring authority.

65. The law by omitting to recognize in justices' courts attorneys in the technical sense of the word, virtually declares that it was framed with the expectation that the proceedings would be conducted by the parties themselves or their agents, unskilled in the forms of law.

66. It is irregular for one attorney to appear for both parties in a justices' court. 67. If an attorney is called on by the justice to produce his power to appear for one of the parties, the execution of it must be proved.

68. A justice has no right to admit an attorney to appear upon his own knowledge of his authority. He should require the usual proof of an authority to appear. He has no