11. (6 Q.) An answer in the supreme court, cannot be amended in matters of substance where it sets up title, and is the same put in before the justice to remove a cause.

12. Where a case originates in a justice's court, neither the supreme court, nor the county court have any power, under the Code, to amend the pleadings therein, on appeal.

61. Costs of action in supreme court.

If the judgment in the supreme court be for the plaintiff, he shall recover costs; if it be for the defendant, he shall recover costs, except that upon a verdict he shall pay costs to the plaintiff, unless the judge certify that the title to real property came in question on the trial.

1. Question. Has this section been amended since its passage in 1848? Answer. It has, in 1851 and 1858, which last amendment reads as above.

2. Q. How did this section read in 1848 and 1851 ?

A. As follows:

§ 54. [1848. Same as § 61 in 1849.] If the judgment in the supreme court be for the plaintiff, he shall recover costs. If it be for the defendant, he shall recover costs; except that upon a verdict, he shall pay costs to the plaintiff, unless the judge certify that the title to real property came in question on the trial.

$61. [1851.] If the judgment in the county court be for the plaintiff, he shall recover costs; if it be for the defendant, he shall recover costs, except that upon a verdict he shall pay costs to the plaintiff, unless the judge certify that the title to real property came in queston on the trial.

3. Q. When the plaintiff succeeds for one cause of action only for less than $50, can he

recover costs?

A. In Blake agt. James, 19 How., 321, Special Term, March, 1860. LOTT, J., said: "This action was originally commenced in one of the district courts of the city of New York, where the plea of title was interposed, and thereupon, upon the compliance by the defendants with the requirements of law, the action was discontinued, and commenced in the supreme court. The plaintiff succeeded on one cause of action against the defendant, Edward D. James, and failed against him as to the other, and failed entirely as against the defendant, Sarah F. James. The recovery on the cause of action as to which the plaintiff succeeded was less than fifty dollars. Judgment was entered by the clerk in favor of the plaintiff, for his costs against the defendant, Edward D. James, and he declined to allow costs to the defendant, Sarah F. James. In this he acted correctly. The rule as to costs in such cases is prescribed by section 61 of the Code, and not by the general provisions of law applicable to costs. In this case there was a verdict, and no certificate that "the title to real property came in question on the trial,' was given by the judge. The clerk, therefore, was authorized to allow costs to the plaintiff, not only against the defendant, Edward D. James, but against the other defendant also. See section 304 Post.

In Hall agt. Hodskins, 30 How., 15, General Term, October, 1865, BOCKES, J., it was decided, that where the plaintiff brings his action before a justice of the peace, and complains for trespass quare clausum fregit, and treading down and destroying grass and herbage there growing, and treading down, eating up and destroying, corn, oats, wheat,

apples, potatoes, and other grain and vegetables of the plaintiff, and the defendant answers by justifying "the acts of entering the close of the plaintiff, mentioned in the complaint," by averring a right of way across the locus in quo, with other defenses-of neglect to keep proper fences-license, and a general denial as the residue of the acts complained of," the defense of justification of entering the close, goes to the plaintiff's entire right of recovery for the trespasses charged, whatever other matters of defense are stated in the answer; and on the delivery to the justice of an undertaking with the answer, he is ousted of jurisdiction, and is bound to discontinue the proceedings-not only as to one or some of the alleged causes of action, but as to all, inasmuch as the defense of title to real property was interposed to all the trespasses charged in the complaint. Where the action is prosecuted in the supreme court for the same cause and upon the same pleadings, and on the trial the plaintiff withdraws and abandons all claim for acts done on the road or right of way set up by the defendant, and recovers a small verdict for the other trespasses complained of on the other portions of the locus in quo, he is, nevertheless, entitled to the costs of the action. Because the gravamen of the comptaint is trespass quare clausum fregit, and the destruction of the grass, herbage, grain and vegetables, are matters of description and aggravation, and the defendant having set up a right of way as to all the alleged unlawful entries charged, his defense goes to the whole matter of the complaint, and a recovery by the plaintiff, however small the amount, entitles him

to costa

What is the result of the decisims under this section?

1. In an action continued in the supreme court by reason of a plea of title in the justice's court, where the plaintiff succeeds upon one cause of action only, and that recovery is less than $50, and fails as to the others, upon which the defendant succeeds, the plaintiff must still be allowed costs, where there is no certificate of the court that title to real property came in question on the trial.

2. The plaintiff is entitled to the costs of the action, although he abandons a part of the cause of action on the trial, and recovers a small amount as to the residue, where the defense goes to the whole matter of the complaint.

$62. Proceedings where several causes of action, and answer of title as to one.

If, in an action before a justice, the plaintiff have several causes of action, to one of which the defense of title to real property shall be interposed, and as to such cause the defendant shall answer and deliver an undertaking, as provided in sections fifty-five and fifty-six, the justice shall discontinue the proceedings as to that cause, and the plaintiff may commence another action therefor in the supreme court. As to the other causes of action, the justice may continue his proceedings.

All actions pending in any county court, on the seventh day of May, eighteen hundred and fifty-eight, in all cases in which a plea of title was interposed in actions originally commenced in a justice's court, are transferred to and vested in the

supreme court, with full power and jurisdiction to proceed therein, as if commenced in said supreme court, by reason of a plea of title having been interposed in a justice's court in like

cases.

1. Question. Has this section been amended since its passage in 1848?

Answer. It has, in 1849, 1851, 1858 and 1860, which last amendment reads as above. 2. Q. How did this section read in 1848, 1849, 1851 and 1858?

4. As follows:

55. [1848.] If, in an action before a justice, the plaintiff have several causes of action, to one of which the defense of title to real property shall be interposed, and as to such cause, the defendant shall answer and deliver an undertaking, as provided in sections 48 and 49, the justice shall discontinue the proceedings as to that cause, and the plaintiff may commence another action in the supreme court therefor. As to the other causes of action, the justice may continue his proceedings.

§ 62. [1849.] If, in an action before a justice, the plaintiff have several causes of action, to one of which the defense of title to real property shall be interposed, and as to such cause the defendant shall answer and deliver an undertaking, as provided in sections fifty-five and fifty-six, the justice shall discontinue the proceedings as to that cause, and the plaintiff may commence another action therefor in the supreme court. As to the other causes of action, the justice may continue his proceedings.

$ 62. [1851.] If, in an action before a justice, the plaintiff have several causes of action, to one of which the defense of title to real property shall be interposed, and as to such cause, the defendant shall answer and deliver an undertaking, as provided in sections fifty-five and fifty-six, the justice shall discontinue the proceedings as to that cause, and the plaintiff may commence another action therefor in the county court. As to the other causes of action, the justice may continue his proceedings.

$62. [1858.] If, in an action before a justice, the plaintiff have several causes of action, to one of which the defense of title to real property shall be interposed, and as to such cause. the defendant shall answer and deliver an undertaking, as provided in sections fifty-five and fifty-six, the justice shall discon

tinue the proceedings as to that cause, and the plaintiff may commence another action therefor in the supreme court. As to the other causes of action, the justice may continue his proceedings.

$63. Docketing justices' judgments, and effect thereof.

A justice of the peace, on the demand of a party in whose favor he shall have rendered a judgment, shall give a transcript thereof, which may be filed and docketed in the office of the clerk of the county where the judgment was rendered. The time of the receipt of the transcript by the clerk shall be noted thereon and entered in the docket; and from that time the judgment shall be a judgment of the county court. A certified transcript of such judgment may be filed and docketed in the clerk's office of any other county, and with the like effect, in every respect, as in the county where the judgment was rendered; except that it shall be a lien, only from the time of filing and docketing the transcript. But no such judgment for a less sum than twenty-five dollars, exclusive of costs, hereafter docketed, shall be a lien upon or enforced against real property.

1. Question. Has this section been amended since its passage in 1848? Answer. It has, in 1849, which amendment reads as above.

2. Q. How did this section read in 1848?

A. As follows:

$56. [1848.] A justice of the peace, on the demand of a party in whose favor he shall have rendered a judgment, shall give a transcript thereof, which may be filed and docketed in the office of the clerk of the county where the judgment was rendered. The time of the receipt of the transcript by the clerk shall be noted thereon and entered in the docket; and from that time the judgment shall have the same effect, as a lien, and be enforced in the same manner, as a judgment of a county court. A certified transcript of such judgment may be filed and docketed in the clerk's office of any other county, and with the like effect, in every respect, as in the county where the judgment was rendered, except that it shall be a lien only from the time of filing and docketing the transcript.

Questions.

3. Q. Is a transcript of a judgment by a justice of the peace prima facie evidence of his jurisdiction to render the judgment?

4. Q. When can an execution on a justice's judgment be the basis for supplementary proceedings?

5. Q. Must a justice's transcript correctly describe the names and numbers of both parties? 6. Q. What court has jurisdiction to set off justice's judgments, when transcripts have been filed in the county clerk's office?

7. Q. Can a justice be required by mandamus to give a transcript of a judgment?

8. Q. How long does the lien of a justice's judgment, filed in the county clerk's office'

continue?

9. Q. Can a transcript of a justice's judgment be filed in the county clerk's office for a less amount than $25?

10. Q. Can a transcript be given by a justice after he has gone out of office?

11. Q. Is a justice ousted of jurisdiction when a transcript is filed?

12. Q. When may a transcript of a justice's judgment be filed nunc pro tunc.

3. Q. Is a transcript of a judgment by a justice prima facie evidence of his jurisdiction to render the judgment?

A. In Dickinson agt. Smith, 25 Barb., 105, General Term, September. 185., JOHNSON, J., it was decided that it is not necessary that a transcript of a judgment rendered by a justice of the peace should show the proceedings to give him jurisdiction to render a valid judgment, in order to authorize it to be filed and docketed. It is, for that purpose, prima facie evidence that the justice had jurisdiction to render the judgment. Nor is it necessary, in such a case, that the certificate of the county clerk should show that the signature of the justice to the transcript was the genuine signature of the justice, or that he was at that time a justice of the county. The judgment, when docketed, becomes a judgment of the county court; and all that the clerk is required to certify is as to the correctness of the copy of the transcript filed in his office, and the docket of the judgment. It is not necessary to show the jurisdiction of the justice, in order to establish the validity of the judgment. The transcript and docketing are all that it is necessary to prove, to establish the judgment as a lien and the authority of the clerk to issue the execution.

In Jackson agt. Rowland, 6 Wend., 667, General Term, May, 1831, it was decided by THE COURT that a transcript of a justice's judgment is good, although it does not on its face show that the justice had jurisdiction.

In Jackson agt. Browner, 7 Wend., 388, General Term, July, 1831, NELSON, J., it was decided that a transcript written in bad English, and probably in worse Dutch, if the essential parts of it are intelligible, it is sufficient to answer all legal purposes.

4. Q. When can an execution on a justice's judgment be the basis for supplementary pro ceedings?

4. In Conway agt. Hitchings, 9 Barb., 378, General Term, September, 1858, WILLARD, J.. it was decided that, by necessary implication, the 292d section of the Code places the judgment of a justice of the peace, of which a transcript has been filed in the office of the county clerk, on the same footing with a judgment of a court of record; and proceedings supplementary to the execution may be had in such a case.

In Butts agt. Dickinson, 20 How., 234, General Term, September, 1860, KNOX, J., it was decided, that an execution on a justice's judgment for less than $25, is no lien on real property and goes against personal only, and hence the return of an execution on such a judgment cannot be the basis for supplementary proceedings. See also section 292 post.

5. Q. Must a justice's transcript correctly describe the names and number of both parties? A. In Simpkins agt. Page, 1 Code, R. 107, Schoharie County Court, September, 1848, LAWYER, J., it was decided, that a transcript of a justice's judgment must correspond with the judgment as respects the names and number of plaintiffs and defendants.

In Geller agt. Hoyt, 7 How., 265, Special Term, September, 1852, MITCHELL, J., it was decided, that where a judgment was docketed correctly as to the christian and surname of the defendant, but incorrectly as to the initial of the middle name, and the docket was afterwards corrected on motion, held, that the judgment took priority as a lien from the