right to allow an appearance by an attorney upon information received out of court as to the attorneys authority.

69. Suits in justices' courts can only be commenced by process or by the voluntary appearance of the parties and joining issue.

70. A constable is prohibited by statute from appearing on the trial of a cause before a justice as the advocate of either party. But if his appearance is confined to the exhibition of the plaintiffs demand, merely, it is unobjectionable.

71. If a party does not object to the appearance of his adversary in a justices court, by attorney, he will be deemed to have admitted his authority to appear.

72. The authority of an attorney or agent to appear for a party in the marine or district courts, in the city of New York, must be demanded if at all, at the time of the

appearance.

73. A general authority to "collect" implies an authority thus to appear, aud sue if

necessary.

74. The authority to appear by attorney in a justices court, when not admitted by the opposite party, must in all cases be proved, either by the attorney himself or by other competent testimony.

75. The law partner of one who is the official attorney of a municipal corporation is not entitled, upon proof of that fact, to appear in a justices' court, for the corporation. 76. Where a party appears in person on the trial before a justice, it will be considered sufficient evidence that another person who appeared for him at the joining of the issue, had authority to join the issue, although no evidence of such authority was then produced.

77. A parol authority is sufficient for the appearance of an attorney before a justice, and the attorney himself is a competent witness to prove such authority. And the proper time to require such proof, is upon the appearance, before joining issue and going to trial.

78. An authority to appear by attorney in a justices' court, may be by parol or in writing, and the attorney himself may prove his authority. If it is in writing, the ovidence of the hand-writing must be produded; and this may be established presumpsively, as by letters between the party and attorney.

79. Where an attorney swore that he was employed to answer for the party in two suits-naming the plaintiffs, and that he was authorized to answer for him in a cause that day pending against him before the justice before whom this suit was to be tried, held insufficient for appearance in this suit..

80. Where the justice's return stated that "plaintiff's counsel on oath declares his authority by one of the overseers of the poor of the town of Potter to answer to this suit," held, sufficient authority to appear for the plaintiffs as overseers of the poor.

81. Where an attorney appears for a defendant before a justice of the peace, and swears that he is duly authorized to answer to the suit, and makes no application for an adjournment but proceeds with the trial for the defendant, by taking out subpoenas, examining witnesses, &c., without stating that he is not authorized to conduct the trial on behalf of the defendant, it is sufficient to justify the justice in proceeding with the trial. And if in fact the attorney was only authorized to appear for the defendant to procure an adjournment, the defendant's remedy is against his attorney.

82. The relief allowed under section 360 of the Code, cannot be granted where there was an appearance for the defendant in the justice's court, by a person duly authorized by him.

83. It is a general rule that the time for the appearance of a defendant served with a summons issued by a justice, shall not be less than six nor more than twelve days, and that the summons shall be served at least six days before the time of appearance mentioned therein.

84. Where there is nothing in a justice's return to show that the defendant did not

appear within an hour after the summons was returnable, a decision rejecting a plea to the jurisdiction on the ground that the defendant did not appear in time, is erroneous. 85. The appearance of a defendant before a justice by attorney, on the return of an attachment, supersedes the necessity of a summons, and gives the justice jurisdiction of the cause.

86. A defect in the form of a summons from a justice's court, is waived by the defendant appearing, pleading and going to trial on the merits.

87. By appearing on the return day and pleading to the merits, the defendant, in a justice's court, waives all defects in the process, and all irregularities therein, or in the service thereof.

88. A defendant fails to appear before a justice, where he neglects to attend on the day to which the cause is adjourned, and the trial proceeds without him.

89. Service of a summons upon John Doe by copy, does not authorize a judgment against a person substituted in his place as defendant, where there is no proof of service of the summons against John Doe upon him.

90. A party who does not appear in a justice's court, as a general doctrine, waives nothing; but this means nothing impeaching the jurisdiction or authority of the court to act, and nothing in the way of objection to the proceedings and competency or sufficiency of evidence on the part of the plaintiff.

91. By appearing and pleading to the merits the defendant waives a defect in the form and nature of the summons; to an unauthorized adjournment; to the manner in which he was brought into court; the manner of taking security and to the return of the constable.

92. A justice should wai rne hour after the time when a summons is returnable, before he proceeds to swear witnesses in the cause. And this rule applies as well on the adjourned day, as on the day of the return of the summons.

93. Where a summons issued by a justice claims damages exceeding $100, the defendant is nevertheless bound to appear in the action, for justices of the peace have jurisdiction in some actions for sums over $100.

94. Where a defendant in a justice's court appears and denies the complaint, or does not appear at all, the plaintiff must prove his case; but he need not disprove any defense that must be specially pleaded to be available to the defendant.

95. A voluntary appearance, even without process, gives jurisdiction of the person; and a plea in bar is a waiver of defects which are properly only pleadable in abate

ment.

96. (15 Q.) The fees of justices of the peace, as regulated by the statute of 1866, will be found in the answer to this question.

97. (16 Q.) As to certain powers and proceedings before justices, provided by the statute of 1862, will be found in the answer to this question.

98. (17 Q.) As to the cases in which justices of the peace are authorized to act as coroners, see the answer to this question.

99. (18 Q.) A justice of the peace is not invested with any authority to issue an attachment against a nonresident of the county under the 33d section of the act to abolish imprisonment for debt, until proof is made by affidavit to his satisfaction of the facts and circumstances entitling the applicant to the same, and a bond with sureties is given.

100. (19 Q.) In order to procure an attachment from a justice of the peace, the appli cant must state in his affidavit the origin of his demand. Whether founded upon contract or upon judgmeat; and must also state the facts and circumstances indicating fraud upon which the application is made; his mere belief is not sufficient.

101. An affidavit for an attachment must state that the acts charged upon the defendant were done with the intent to defraud creditors; and also it must state the facts and circumstances relied on; they cannot be supplied by verbal statement.

102. Where an attachment is applied for on the ground of the concealment of the debtor it is not supported by an affidavit that he keeps himself concealed to avoid the service of a warrant issued under the fourth section of the act to abolish imprisonment, &c.,

unless it affirmatively appear that he was charged only with an attempt to commit a fraud or with fraudulently contracting the debt.

103. An affidavit for an attachment stating that the defendant has executed a mortgage of a portion of his property, and refused to confess judgmant or to give security, declaring a determination to manage his property himself, is not enough to authorize the warrant on the ground of an intent fraudulently to dispose of his property.

104. It was held that an affidavit for an attachment against a debtor for having departed the county with intent to defraud his creditors, is good, although it states the belief of the applicant as to the intent, provided he sets forth the facts and circumstances upon which his belief was founded.

105. It was held, that a justice is authorized to issue an attachment, although the affidavit required by the statute, is not signed by the deponent. If the witness be sworn and the justice take down and certify the testimony, it is a sufficient affidavit. But an affidavit in which the facts are stated upon belief merely, is fatally defective.

106. An affidavit for an attachment, on the ground that the debtor has assigned and disposed of, and is about to remove his property from the county, with intent to defraud his creditors, where it states only that the defendant had made two assignments of property to the same person, and that he said he had then no property, and could pay no debts, is a total defect of evidence of an intent to defraud creditors, and an attachment founded on such an affidavit is void.

107. Where certain facts are required to be proved to warrant the issuing of process, in a court of special and limited jurisdiction, if there be a total defect as to any essential point, the process will be void.

108. Where an affidavit for an attachment stated that the debtor was indebted to the plaintiff in the sum of $16, arising on contract, over and above all discounts; that the debtor had told him that he was going to leave the county and go to Canada, and as the creditor believed, with an intent to defraud his creditors, and that he was about to take with him all his property, held sufficient, although the creditor swore to his belief as to the intent of the debtor to defraud his creditors,-stating positively the facts and circumstances on which such belief was founded.

108. An affidavit for an attachment stating upon information and belief that the defendant is an absconding or fraudulent debtor, and containing no averment of any fact or circumstance, on belief or otherwise, to show the fraudulent intent alleged, is not suffi cient "proof" to authorize an attachment.

103. An affidavit for an attachment stating that it is made on the ground that the defendant "has assigned or secreted his property with intent to defraud his creditors," although in the words of the statute, is insufficient, unless the facts and circumstances stated therein are enough to justify a belief that the defendant has assigned or secreted his property with intent te defraud his creditors.

110. An affidavit for an attachment on the ground that the debtor has departed the county with intent to defraud his creditors, &c., is insufficient, although it states the requisite facts and circumstances, unless, in addition, the plaintiff adds his belief that such acts were done by the defendant with intent to defraud his creditors.

111. An affidavit for an attachment which would be deemed sufficient under the nonimprisonment act of 1831, is also sufficient under the Revised Statutes.

112. Where an affidavit for an attachment is declared insufficient, and the justice uses another affidavit of a different plaintiff, made for the same purpose, and at the same time with the one decided to be insufficient, the attachment is properly issued.

113. There must be an affidavit, for an attachment, proving the grounds on which the applicetion is founded, in all cases, not excepting that of a non-resident.

114. Where an affidavit for an attachment, states that the plaintiff has a debt against the defendant, to a specified amount, arising upon contract, and that the defendant is a non-resident of the county, it is enough to warrant the issuing of the attachment. 115. An affidavit for an attachment, on the ground that the defendant is about to dis

pose of his property with intent to defraud his creditors, and assigns the existence of the following facts as evidence of that intent, is sufficient, viz. :-that the defendant left the county two months before, and went to Canada with intent to remain there, taking with him a portion of his goods; that he had no family and but little property; that he was offering his property for sale; that he had told the plaintiff that he would be glad if he ever got his pay of him; that no civil process could be served on him, because he kept out of the state; and that he refused to pay anything on the plaintiffs' debt.

116. That the fact that an affidavit upon which an attachment is issued by a justice under the non-imprisonment act, contains facts which would have warranted an attachment under the Revised Statutes, is not a ground of error, provided the process actually issued is warranted by the affidavit.

117. Upon an application for an attachment on the ground that the defendant has left the county where he lust resided with intent to defraud his creditors, the plaintiff must state the grounds of his application in his own affidavit, and then he must prove the fucls and circumstances to establish such grounds, either by his own affidavit or that of some other person or persons.

118. Where the evidence presented to a justice for an attachment, on the ground of an intent on the part of the defendant to defraud his creditors, is so slight and insufficient that the action of the justice would be reversed upon a direct proceeding to review it, the process is to be deemed valid when attacked in a collateral action. The process is not to be held void if the justice had before him evidence legally tending to establish the jurisdictional fact, and requiring the exercise of his judicial judgment as to its cogency.

119. (20 Q.) The appearance of the defendant on the return of process in a justice's court, in order to make an objection to the sufficiency of the return, is no waiver of the irregularity. But after pleading, the objection would came too late.

120. A plea by a defendant, in a justice's court, is not a waiver of objections which have previously and in due season been taken and overruled, or decided against the defend

ant.

121. Where a defendant is sued before a justice by warrant, and joins issue upon the merita and proceeds to trial, without objection, he will not be permitted to object on appeal that the justice had no jurisdiction over his person by reason of a defect in the affidavit on which the warrant issued.

122. A defect in an affidavit for an attachment in a justice's court, if objected to by the defendant before pleading may be taken advantage of on certiorari, though the defendant pleaded to the action after the objection was overruled. If the defendant had pleaded without taking the objection, the defect would have been waived.

123. (21 Q.) The security required before a justice is authorized to issue an attachment, is a bond with a certain specified condition prescribed by the statute; no covenant to pay all damages, &c., will answer in place of the bond.

124. Where the bond, on application for an attachment was executed "W. S., agent for J. S." (the principal) the sureties executing in proper form, the bond was held sufficient, although the principal was not bound.

125. A bond on an application for an attachment is defective that does not truly set forth the suit in which the attachment issued.

126. A bond given by a party suing out an attachment in a justice's court, that he will pay all damages and costs if he fail to reeover, &c., as prescribed by statute, extends to the final determination of the cause in the appellate court, and not only to a recovery, in the justice's court.

127. But a covenant of a surety for a non-resident plaintiff on suing out a summons-to pay any sum that may be adjudged against the plaintiff in that suit, does not extend to the costs of a reversal on certiorari, of the judgment recovered by the plaintiff in the jus tice's court, because a certiorari to a justice's court is a new suit.

128. A plaintiff in an action on an attachment bond is not entitled to recover the value of the property levied on, if he has not been dispossessed; and where it is not shown that he has been subjected to costs he is not entitled to only nominal damages. The plaintiff in such an action is bound to show that he has sustained some damages by reason of the attachment, before he can recover.

129. Where a plaintiff has failed to recover judgment in an attachment suit, the obligors on the bond are prima facie, liable for the value of the property attached.

130. Where a judgment in an attachment suit in favor of the plaintiff is reversed in the common pleas, the obligees in the attachment bond are entitled to recover as part of their damages, the costs incurred in the common pleas.

131. The bond given by a third person on claiming the delivery of goods attached, must be in double the value of the property, and not merely in double the amount of the debt, for which the attachment was issued.

132. (22 Q.) Where an attachment is issued under the Revised Statutes against a defendant on the ground that he has departed from the county where he last resided with intent to defraud his creditors, there must be not less than six nor more than twelve days between the teste and return of the process.

133. But under the non-imprisonment act, if the attachment be made returnable more than four days after its date, it is void, although the proceeding be under section 34 of that act, allowing such process against a debtor about to remove his property from the county. 134. (23 Q.) An attachment issued in pursuance of the provisions of the Revised Statutes, by a justice of the peace, creates a lien upon the goods attached, not only against the acts of the debtor, but against a subsequent attachment or execution of any other creditor. But this lien is temporary, and will be lost, unless the creditor prosecutes his suit to judgment with all due diligence.

135. An execution or attachment from a court not of record, if actually levied, has priority over an execution from a court of record, in the hands of the sheriff, under which actual levy has not been made.

136. An officer making a second levy of an attachment-cannot by virtue thereof, maintain an action of trover against a sheriff who illegally takes and sells the property, where the levy under the first attachment remains.

137. Where property is taken under an attachment, the lien created thereby continues notwithstanding the giving of a bond by the debtor for its production until the issuing of an execution, and a reasonable time thereafter to make a levy.

138. Where a constable has taken property upon an attachment issued by a justice, he is bound to release the same on being served with a certificate that an appeal has been duly made from the judgment of the justice, in the same manner as if the property had been taken by him upon execution.

139. Where a judgment is given for the defendant in an attachment suit in a justice's court, he is entitled to an immediate return of all the property taken by the attachment; and such right is in no way affected by the plaintiff's appeal from the judgment.

140. (25 Q.) The return of an officer upon an attachment issued out of a justice's court, that he had levied on certain goods, enumerating them, is insufficient; it should also be stated that a copy of the attachment had been left at the dwelling house or other last place of abode of the defendant.

141. The return of an officer, that, by virtue of an attachment against A B, he had levied on certain property, is a sufficient return that he had levied upon the property of the defendant.

142. The return of an officer upon an attachment against joint debtors, which shows a service upon one of the defendants, but is silent as to service on the other, is insufficient to authorize the justice to proceed and render judgment against both, where the defect is not cured by appearance.

143. The return of an officer upon an attachment that he has delivered to each of the defendants, personally, a copy of the attachment and inventory, is prima facie sufficient,