In the matter, &c., of Conover agt. Devlin.

There is no pretence that he has resigned or forfeited any right he thus acquired. It follows that he is now in possession of those rights. He is therefore now street commissioner de facto. His title to the office may be tested in the proper proceeding; but, as was strenuously insisted by the respondent on the argument, the title of one in possession under color of title cannot be tried here. For the purpose of this proceeding, possession with color of title is sufficient.

It is said that he was not in the office, because his bond was not approved by the mayor. This is one of the questions to be tried in the suit for testing the title to the office, and must be referred to that forum. It is replied to this question among other things

1. That no bond is required by law.

2. That the approval, being merely a mode of determining its sufficiency, is not indispensable-the sufficiency being shown otherwise.

3. That the efforts of the applicant to get the approval of the mayor, and his refusal to attend to it, excuse the omission, even if it were otherwise necessary.

4. That if an approval was necessary, and nothing had been done to excuse the want of it, still the applicant was in possession, even if the entry without the approval was wrongful.

Here are several grave questions arising, by no means free from difficulty, and not at all proper to be tried here. He claimed to be in the office. He claimed also to have complied with all the legal conditions of the appointment, and for this he shows ample color. What these conditions were, and whether they were precedent or not, and whether they had been fulfilled, and if not, whether the fulfillment is excused by the facts urged to that end, and if not excused, what the effect of non-fulfillment is to be, are all questions fairly arising on the facts in this case, and to be considered whenever the question of title shall be fundamentally decided. They cannot be properly examined in this informal and summary proceeding. The fact of actual possession does not necessarily depend on the decision of that; and, as I have before intimated, wherever the

In the matter, &c., of Conover agt. Devlin.

fact of the possession of an office can be discerned, as in some cases it can easily, and in others, like this, only with great difficulty and very indistinctly, this fact, fortified by color of title, should direct the course of the books and papers.

At the time he assumed the office the vacancy in it was undisputed. No one even claimed to be in it. The title of Mr. Devlin, whatever it may be confessedly, had its origin some days afterwards. His appointment bears date several days after that on which the applicant assumed possession by virtue of his appointment, and after his removal by force, not from the office for unauthorized force could not divest him of possession of the franchise-but from the rooms and property dedicated to the uses of it in the discharge of its functions by the incumbent.

The rights of Conover, acquired by prior possession, can only be divested by legal measures: these measures have not been applied, and his rights remain. Being in possession, he was the officer de facto, and will continue to be until ejected, which can only be done by process of law. He has all the rights incident to possession, and with color of title.

My conclusions are, that Conover entered the office and took possession; that he has not been removed by legal warrant or authority, or left it himself, and consequently that he is still in and, for this purpose, entitled to possession; and consequently that the respondent, as the office can have but one incumbent, is not legally in possession. It follows that Conover is entitled to possession of the books and papers, and to have them delivered to him under this proceeding.

Worden agt. Brown.

SUPREME COURT.

EDWARD WORDEN agt. JACOB B. BROWN.

Courts of justices of the peace are courts of special and limited jurisdiction; they can exercise no jurisdiction except where it is distinctly and expressly conferred.

The Code (§ 53) specifies distinctly the causes of action and particular cases of which justices of the peace shall have jurisdiction, and confers and defines their jurisdiction. There are no general words or terms, like trespass, assumpsit, or trespass on the case, within which other causes of action may be embraced.

Whether, in the framing and passage of the Code, it was a predetermination at all hazards not to use the name of an old common-law action, or from an oversight, it seems that quite a class of cases is omitted, in which justices of the peace formerly had jurisdiction, under the comprehensive description of actions on the case; such, for instance, as an action against a justice for a false

return.

Of course, such an action is necessarily brought in the supreme court; but if the plaintiff does not recover $50 he cannot recover costs, because § 304 only gives costs of course to the plaintiff in the actions specified in § 54 of the Code, where a justice of the peace has no jurisdiction, and this action is not there specified, and there are no other provisions to cover it.

In most such cases, therefore, as in this, the result will be a drawn battle. The plaintiff will whip the justice, for making a false return, to the extent of some $33, and the defendant will turn around and whip the costs out of the plaintiff sufficient to pay it.

Monroe Special Term, July, 1857.

THIS was an action brought against the defendant, a justice of the peace, for a false return. The cause was tried at the last April circuit in Monroe county, when the plaintiff obtained a verdict against defendant for thirty-three dollars and sixteen

cents.

The plaintiff's attorney served the usual notice of taxation of costs and disbursements before the clerk of Monroe county, insisting that he was entitled to costs.

The defendant's attorney appeared before the clerk, and there insisted that the defendant was entitled to costs, and presented the same for adjustment.

Worden agt. Brown.

The clerk held that the plaintiff was entitled to costs, and taxed the same at $135.55.

From his decision and taxation the defendant appealed to the special term.

GEO. P. TOWNSEND, for appellant.

JNO, C. CHUMASERO, for respondent.

E. DARWIN SMITH, Justice. The plaintiff claims to recover costs in this action on the ground that the suit was necessarily brought in this court.

Section 304 of the Code gives costs of course to the plaintiff upon a recovery-1st. In actions for the recovery of real property, or when a claim of title to real estate comes in question. 2d. In an action to recover possession of personal property. 3d. In actions of which, according to § 54, a court of a justice of the peace has no jurisdiction. 4th. In actions for the recovery of money, when the recovery is $50, or more.

But in actions of assault, battery, false imprisonment, libel, slander, malicious prosecution, criminal conversation or seduction, if the plaintiff recover less than $50, he shall recover no more costs than damages.

This case does not come within the specification of this last subdivision, or within either of the other subdivisions, unless it may be the third. That subdivision gives costs in all cases where the justices of the peace have no jurisdiction under § 54.

Section 54 is as follows:-" But no justice of the peace shall have cognizance of a civil action

"1st. In which the people of this state are a party, except for penalties not exceeding $100.

"2d. Nor where the title to real property shall come in question, as provided in §§ 55 to 62 inclusive.

"3. Nor of a civil action for an assault and battery, false imprisonment, libel, slander, malicious prosecution, criminal conversation, or seduction.

"4. Nor of a matter of account, where the sum total of the

Worden agt. Brown.

accounts of both parties, proved to the satisfaction of the justice, shall exceed $400.

"5. Nor of an action against an executor or administrator, as such."

Clearly this action does not come within any of the specifications of this section. But it is claimed, by counsel for the plaintiff, that §§ 53 and 54 are to be construed together, to show what jurisdiction is possessed by justices of the peace; and as it is clear that this action could not, within the jurisdiction conferred in these two sections, have been brought in a justice's court, that the equity of the provision in § 304 in respect to costs, where the justice has not jurisdiction, applies, and that costs should therefore be allowed.

Section 53 confers and defines the jurisdiction of justices of the peace. It specifies in nine subdivisions the particular cases. in which justices of the peace shall have jurisdiction.

As the courts of justices of the peace are courts of special and limited jurisdiction, they can exercise no jurisdiction except where it is distinctly and expressly conferred.

The specifications or subdivisions of this section 53 confer no authority upon a justice of the peace to try an action for a false return. Discarding, as the codifiers did, the common-law names of actions, they were driven to the necessity of specifying distinctly the causes of action of which justices of the peace should have jurisdiction, and have omitted quite a class in which they formerly had jurisdiction, under the comprehensive description of actions on the case.

The causes of action, of which justices may take jurisdiction, are very explicitly defined or specified in this section, and there are no general words, or terms, like trespass, assumpsit, or trespass on the case, within which other causes of action may be embraced.

Justices of the peace clearly have no jurisdiction of such an action as this. But there is no general provision giving costs in cases where justices of the peace have not jurisdiction. The provision in § 304 is all the provision in the Code on the sub