Gillespie, 13 Wend. 404). The justice may take into consideration an affidavit made by another plaintiff to procure an attachment against the same defendant (Colver v. Van Valen, 6 How. 102). An affidavit stating facts indicating an intent to defraud is insufficient; it must state a belief of a fraudulent intent (id.; Miller v. Brinkerhoff, 4 Denio, 118; Pope v. Hart, 35 Barb. 630; Colver v. Van Valen, 6 How. 102); and the facts must also be stated (Smith v. Luce, 14 Wend 237; Connell v. Lascells, 20 id. 77; Stewart v. Brown, 16 Barb. 367; Frost v. Willard, 9 Barb. 440; Camp v. Tibbetts, 2 E. D. Smith, 20; 3 Code R. 45). The facts must be sworn to positively, not on belief (Johnson v. Moss, 20 Wend. 145; Fulton v. Heaton, 1 Barb. 552). An affidavit in which the facts are stated on the belief only of the deponent is fatally defective (Dewey v. Greene, 4 Denio 93; Mott v. Lawrence, 9 Abb, 196). The objection, if made in due time, is not waived by the defendant pleading after his objection is overruled (Avery v. Slack, 17 Wend. 85; Shannon v. Comstock, 21 id. 457; Wheeler v. Lampman, 14 Johns. 481); but pleading without previously objecting is a waiver (id. Swartwout v. Roddis, 5 Hill, 118). Objections improperly overruled are sometimes waived by afterwards going on with the suit (3 Hill, 180, 499; 5 id. 428). If the affidavit contains some evidence for the justice to act on, the proceeding will not be reversed for insufficiency of proof (Rosenfield v. Howard, 15 Barb. 546); and cannot be questioned in a collateral proceeding (Kissock v. Grant, 34 id. 144). An affidavit that defendant kept concealed to avoid service of a warrant, not showing the kind of warrant, held insufficient (Lynde v. Montgomery, 15 Wend. 461). Proof that defendant has removed property, or made a mortgage, without showing an intent to defraud, is not sufficient (Connell v. Lascells, 20 Wend. 77; Rosenfield v. Howard, 15 Barb. 546; Mott v. Lawrence, 9 Abb. 196; 17 How. 559.)

a. Security.—A bond must be given (Homer v. Brinckerhoff, 1 Denio, 184; Bennett v. Brown, 4 N. Y. 254; Davis v. Marshall, 14 Barb. 96), by plaintiff or some one on his behalf with surety (Millius v. Shafer, 3 Denio, 60). It must truly describe the action (Comfort v. Gillespie, 13 Wend. 404). The condition of the bond extends to the final result of the proceedings (Ball v. Gardner, 21 Wend. 290; see Fenno v. Dickenson, 4 Denio, 84), and all damages sustained by the attachment (Groat v. Gillespie, 25 Wend. 383; Winsor v. Örcutt, 11 Paige, 578; and see Earl v. Spooner, 3 Denio, 246; Bennett v. Brown, 31 Barb. 158). As to approving bond (Bascom v. Smith, 31 N. Y. 595).

6. Return.—An attachment on the ground that the defendant has left the county with intent to defraud his creditors, must be returnable not less than six nor more than twelve days from date (Johnson v. Moss, 20 Wend. 145).

c. Waiver.—A non-resident sued by long attachment may waive the irregularity, and take his remedy on the bond (Bowne v. Mellor, 6 Hill, 496). A long attachment, regular on its face, protects the officer (Webber v. Gay, 24 Wend. 485).

d. Priority. An attachment actually levied has priority over an execution in the sheriff's hands, but on which no levy has been made (Ray v. Harcourt, 19 Wend 495; Dubois v. Harcourt, 20 id. 41); but to preserve priority, plaintiff must proceed with due diligence (Van Loan v. Kline, 10 Johns. 129; Sterling v. Welcome, 20 Wend 238), and suffer its removal out of the county (id.). e. Redelivery.—On a claim by a third party to goods attached, the bond for their delivery must be for double the value of the goods attached (Kamena v. Wanner, 6 Abb. 193).

On plaintiff's recovering judgment, if an appeal is taken, the attached property must be released (Keyser v. Waterbury, 7 Barb. 650; and see Moore V. Somerindyke, i Hilton, 199).

f. Judgment.-Where an attachment issues on the ground that defendant has departed with intent to defraud, &c., judgment should be entered without a summons (Stewart v Brown, 16 Barb 367).

g. Return.-A return of a levy, without stating that a copy of the attachment was served, is not sufficient (Willard v. Sperry, 16 Johns. 121). A return

of levy on property, without saying of the defendant, or a return of delivery of a copy without saying a certified copy, held sufficient (Johnson v. Moss, 20 Wend. 145; Van Kirk v. Wilds, 11 Barb. 520).

a. Service. The attachment must be served personally, if defendant can be found if not served personally, a summons must issue (Taylor v. Harker, 1 E D. Smith, 391). A return that defendant could not be found in the county is equivalent to a return that no personal service has been made (Rosenfield v. Howard, 15 Barb. 546).

b. Warrant.—A warrant is the only process by which a person can commence an action for a tort before a justice of the peace of the county in which he resides against a non-resident of such county; and in all cases on application for a warrant, except where the action shall have been commenced by summons, the applicant shall, by affidavit, state the facts and circumstances within his knowledge, showing the grounds of his application (Pope v. Hart, 35 Barb. 630; 23 How. 215). An affidavit which stated positively that the applicant was a resident of the county, and that the defendant was a resident, and also that, as he verily believed, he had a good cause of action against the defendant for fraud and deceit in the sale by him of a certain pair of horses to plaintiff, was held sufficient (id.). The applicant for a warrant may prove the facts necessary to its issuance (Terry v. Fargo, 10 Johns. 114; Bissell v. Hill, 3 Wend 389). The requisite security may be by a deposit of money (Whee lock v. Brinkerhoff, 13 Johns. 481); but a note to the justice, requesting him to let plaintiff have a warrant, and that the writer would be "answerable for the costs," is not a sufficient security (Money v. Tobias, 12 Johns. 422). The security extends to costs on appeal (Traver v. Nichols, 7 Wend. 434). Omitting to state the facts which entitle the party to a warrant is a jurisdictional defect (Loder v. Phelps, 13 Wend. 46; Money v. Tobias, 12 Johns. 422). A warrant in favor of two plaintiffs, partners, cannot issue on an affidavit that one is a non-resident (Linnell v. Sutherland, 11 Wend. 568). The defendant must be brought before the justice (Colvin v. Luther, 9 Cow. 61). Security taken for his appearance is void (Millard v. Canfield, 5 Wend. 61). The justice should quash the warrant on its being shown that the defendant had been a resident thirty days before warrant issued (Shannon v. Comstoch, 21 · Wend. 457).

& Service of summons.—Where the plaintiff is a constable he may himself serve the summons (Tuttle v. Hunt, 2 Cow. 436; Putnam v. Mann, 3 Wend. 202). Service on the 2d for the 8th day of the month is in time (Columbia Turnpike Road Co. v. Hayward, 10 Wend. 422). The service should not be on Saturday on persons who keep that day holy (Laws 1847, ch. 349; Marks V. Wilson, 11 Abb. 88).

d. Return of service.-The return should state the time and manner of service, and the statute requirement in this respect should be strictly complied with (Wheeler v. Lampman, 14 Johns. 481; Legg v. Stillman, 2 Cow. 418; Stewart v. Smith, 17 Wend. 517; Putnam v. Mann, 3 id. 202); and requires a revenue stamp (Miller v. Larmon, 38 How. 417). A return of "personally served," or of "served by copy," held sufficient as to manner of service (Legg v. Stillman, 2 Cow. 418; Tuttle v. Hunt, id. 436; Hughes v. Mulvey, 1 Sand. 92; B'd of Excise of Saratoga v. Doherty, 16 How. 46); but where the return was "served by copy," without stating whether the service was a personal service by copy, or by leaving a copy, was held not sufficient (Foster v. Hazen, 12 Barb. 547). Where the action is for a penalty the return need not show that the statutory endorsement on the summons was also served (B'd of Excise of Saratoga v. Doherty, 16 How. 46). Where the defendant is a corporation the return should show how the service was made (Sherwood v. Saratoga & W. R. R. Co. 15 Barb. 650). The justice is to decide whether the return shows a service sufficient to give him jurisdiction. If the return shows sufficient personal service the justice has jurisdiction, and if the service was not in fact sufficient the judgment may be reversed on appeal, but neither the return nor the judgment can be questioned collaterally (N. Y. & Erie R. R. Co. v. Purdy, 18 Barb. 574;

Fitch v. Devlin, 15 id. 47; Hubbard v. Chapin, 28 How. 407). In an action against a railroad company, the constable returned that he served the summons personally on A B, freight agent of defendants, at, &c., no person having been designated by them upon whom process might be served, and that no officer of the company resided within the county on whom process could be served,-held that defendant might show on appeal that the service was unauthorized, as there was a director resident in the county (Wheeler v. N. Y. & Harlem R. R. Co. 24 Barb. 414). The return is prima facie evidence of the facts therein stated (id.). A return of personal service indorsed on the summons by the justice, at the request of the constable, but not subscribed by the constable, is sufficient, and confers jurisdiction on the justice (Reno v. Pinder, 20 N. Y. 298, rev'g s. c. 24 Barb. 423). An entry in the docket, "Sept. 1. Sums 2 pers. by S. B. Ward, Cons. 11 plt. appears," was held no evidence of the service (Manning v. Johnson, 7 Barb. 457).

On summons against two or more jointly liable, a return of service on one defendant only gives jurisdiction to proceed in form against all the defendants (Fogg v. Child, 13 Barb. 246). On attachment it is otherwise (McDoel v. Cook, 2 N. Y. 110).

The summons must be returned to the justice with a written return thereon, or the justice has no authority to proceed (Jackson v. Sherwood, 50 Barb. 356). A person deputized to serve a summons must make a return; the same as required of a constable (id.).

a. Appearance. The parties may now appear in person or by attorney, formerly it was otherwise (Smith v. Goodrich, 5 Johns. 353), but attorneys-atlaw, as such, are not recognized in justices' courts (Hugh v. Mulrey, 1 Sand. 92; Cohen v. Dupont, id. 260; see, however, Laws 1862, ch. 484; Laws 1864, ch. 421). The same person cannot appear as attorney for both parties (Sherwood v. Saratoga R. R. Co. 15 Barb. 650). And the constable or person deputized who served the process cannot advocate the cause; he might appear on the return day, and present plaintiff's demand, but could not prove the cause of action (Ford v. Smith, 11 Wend. 73; Kittle v. Baker, id. 354; Knight v. Odell, 18 How. 279). A constable who serves the process, appearing as counsel, renders the judgment irregular but not void (Wilkinson v. Vorce, 41 Barb. 370). The wife of one of the parties was allowed to appear for him (Hughes v. Mulvey, 1 Sand. 92). The attorney must be duly authorized to appear, and an authority "to collect" is sufficient authority to appear (McMinn v. Richtmeyer, 3 Hill, 236). The attorney must prove his authority to appear (Fanning v. Trowbridge, 5 Hill, 428), and if the authority is in writing its execution must be duly proved (Timmerman v. Morrison, 14 Johns. 369), if insisted upon (see Hirshfield v. Landman, 3 E. D. Smith, 208; Bush v. Miller, 13 Barb. 481). Omitting to object on the trial to the authority of the party to appear, is an admission of his authority (Ackerman v. Finch, 15 Wend. 652; and see Treadwell v. Bruder, 3 E. D. Smith, 596). The justice cannot act on his own knowledge of the authority; there must be proof before him (Beaver v Van Every, 2 Cow. 429; Lester v. Crary, 1 Denio, 81; Wilcox v. Clement, 4 id 60). As to what is sufficient proof of authority to appear, see Warren v. Helmer, 8 How. 419; Andrews v. Harrington, 19 Barb. 343; Underhill v. Taylr, 2 Barb. 348; Armstrong v. Craig, 18 Barb. 387; Bunker v. Latson, 1 E. D. Smith, 410; Birch v. Westfall, 5 N. Y. Leg. Obs. 178. See Appearance on Trial, post.

b. Effect of appearance.-All defects in the summons and service thereof are cured by appearance and answer without objection (Heilner v. Burras, 3 Code R. 17; Cushingham v. Phillips, 1 E. D. Smith, 417; Andrews v. Thorp, ib. 615; Bray v. Andreas, ib. 387; Hogan v. Baker, 2 ib. 22; Sprague v. Irwin, 27 How. 51; Watson v. Morton, id. 294), and an appearance of a defendant, on the return of an attachment, gives the justice jurisdiction to proceed without issuing a summons (Conway v. Hitchins, 9 Barb. 378).

Where a summons is issued by a justice not residing in the same town with

either of the parties, nor in an adjoining town, the defendant is not, in order to avail himself of his objection to the jurisdiction, bound to appear and object. If he does not appear, a judgment rendered will be voidable, on an appeal and assignment of error in fact (Tiffany v. Gilbert, 4 Barb. 320), and the same rule applies to a non-resident defendant sued by a long summons (Willing v. Wheeler, 28 Barb. 669; and see Buck v. Waterbury, 13 Barb. 116; Fitch v. Derlin, 15 id. 47). A non-resident defendant sued by a long summons appeared and answered at the time, alleging, but not setting up as a defense, his non-residence, and not presenting any affidavit of non-residence,-held that he had waived objection, and that the justice had jurisdiction (08burne v. Gilbert, 52 Barb. 158).

a. Calling Action.—A justice has jurisdiction of a cause at the return of the summons and of the person one hour after the return, whether the defendant is present or not (Sagendorph v. Shult, 41 Barb. 102). The provision requiring the justice to wait one hour after the hour appointed applies to the return day (Allen v. Stone, 9 Barb. 60), an adjourned hearing (Sherwood v. Saratoga & W. R. R. Co. 15 Barb. 650), and where the trial is necessarily held open to a future day (Clark v. Garrison, 3 Barb. 372). After the justice had called through his list of causes, a defendant who was in waiting asked his cause to be called, and was informed by the justice that there was no such cause; whereupon he left the court;-held the justice could not afterwards, and in the defendant's absence, proceed with the cause (Murling v. Grote, 3 Abb. 109).

b. Discontinuance by non-appearance.-The action may be discontinued by the non-attendance of the justice or the plaintiff on the return day, or any adjournment day within one hour after the hour appointed (Lynsky v. Pendegrast, 2 E. D. Smith, 43; Sprague v. Shed, 9 Johns. 140; Green v. Angel, 13 id. 469). The discontinuance may be waived by consent (Stoddard v. Holmes, 1 Cow. 245); and where the justice did not arrive before the expiration of the hour, but soon afterwards, and after the defendant had left, but he caused his arrival and desire to proceed with his trial to be made known to the defendant, and the defendant attended, objected to the trial proceeding, and refused to take part therein, yet the justice proceeded-on appeal it was held regular (Everett v. Lisk, 1 Code Rep. 70; and see Cornell v. Bennett, 11 Barb. 657; Myer v. Fisher, 15 Johns. 504; Barber v. Parker, 11 Wend. 51; Wilde v. Dunn, 11 Johns. 459; Baldwin v. Carter, 15 id. 496; Wilcox v. Clement, 4 Denio, 160). The justice may postpone calling the case under special circumstances (Hunt v. Wickwire, 10 Wend. 102; Chamberlain v. Lovet, 12 Johns. 217; Pickert v. Dexter, 12 Wend. 150).

c. Appearing pending the trial.-Defendant appearing before the plaintiff's case is closed, should be permitted to make a defense (Sweet v. Coon, 15 Johns. 86; Pickert v. Dexter, 12 Wend. 150; Allen v. Stone, 9 Barb. 60; Mead v. Darragh, 1 Hilton, 395; Atwood v. Austin, 16 Johns. 180; Colvin v. Corwin, 15 id. 557), unless where he does not appear on the return day, and the cause is adjourned (Snell v. Loucks, 11 Johns. 69; see 19 Johns. 390; 8 Cow. 87; 1 Wend. 143; 12 id. 150; 15 id. 557; 4 Den. 576). But he cannot appear and defend after cause is submitted (The People v. Lynde, 8 Cow. 133; Montford v. Hughes, 3 E. D. Smith, 591), nor after judgment (Alburtis v. McCready, 2 E. D. Smith, 39; Sperry v. Major, 1 id. 361; Appleby v. Strang, 1 Abb. 143).

d. Infant defendant.—When the defendant is an infant no proceeding can be had after the return of the summons until after a guardian has been appointed for the infant. If no application is made by or on behalf of the infant, the plaintiff may apply for appointment of guardian. If the fact of infancy is not disclosed prior to the trial, but is disclosed pending the trial, the action should be dismissed; such dismissal will not bar a second action (Harrey v. Large, 51 Barb. 222).

e. Adjournments.-The justice has power on the return day of his own motion to adjourn not exceeding eight days (Thompson v. Sayre, 1 Denio, 175;

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JUSTICES' COURTS.

[$ 54. Fanning v. Trowbridge, 5 Hill, 428; Nellis v. Mc Carn, 35 Barb. 115), and where the eighth day is Sunday, the adjournment may be to the following Monday (Speidell v. Fash, 1 Cow. 234). Although a justice may adjourn on his own motion, yet where he does not do that, but adjourns on defendant's application and against the wishes of plaintiff and without requiring oath or bail, the action is discontinued (Peck v. Andrews, 32 Barb. 445). The adjournment must be to a day certain (Wilcox v. Clement, 1 Denio, 160). An irregular adjournment, or for longer than is authorized, is cause for reversal of judgment (Kimball v. Mack, 10 Wend. 297; Palmer v. Green, 1 Johns. Cas. 101; Colden v. Dopkin, 3 Cai. 171; Gamage v. Law, 2 Johns. 192: Dunham v. Heyden, 7 id. 381; Proud fit v. Henman, 8 id. 391; McCarthy v. McPherson, 11 id. 407; Payne v. Wheeler, 15 id. 492; Redfield v. Florence, 2 E. D. Smith, 339; Wight v. Me Clave, 3 id. 316; Aberhall v. Roach, id. 345; McCollum v. Mc Clave, 1 Hilton, 140; 3 Abb. 106); but a party asking or consenting to an irregular adjournment cannot allege it for error (Peck v. McAlpine, 3 Cai. 166; Mason v. Campbell, 1 Hilton, 291; Redfield v. Florence, 2 E. D. Smith, 339); and consent may be inferred from neglecting to object (id.; Kilmore v. Suydam, 7 Johns. 529; Fiero v. Reynolds, 20 Barb. 275); and the parties may consent to adjourn, and further, that on the adjourned day the justice may again adjourn (Richardson v. Brown, 1 Cow. 255). But a second adjournment on a written consent, but in the absence of both parties, was held irregular (Weeks v. Lyon, 18 Barb. 530; see Redfield v. Florence, 2 E. D. Smith, 340); and where a cause was adjourned to the 15th, and on the 10th one went before the justice and swore he was authorized by both parties to ask a further adjournment, and on this a further adjournment was had, held that a judgment on such adjourned day, defendant not appearing, was erroneous (Deland v. Richardson, 4 Denio, 95; and see Rawson v. Grow, 4 E. D. Smith, 18).

a. In general a justice has a discretion as to granting an adjournment, and only a clear abuse of that discretion will be error (Onderdonk v. Ranlett, 3 Hill, 323; Irroy v. Nathan, 4 E. D. Smith, 68; Weed v. Lee, 50 Barb. 354, and see Pease v. Gleason, 8 Johns. 409; Rawson v. Grow, 4 E. D. Smith, 18). The discretion is limited to the periods within which power to direct them is given by law; and an unauthorized adjournment amounts to a discontinuance (Proudfit v. Hurmans, 8 Johns. 391; Hɔgan v. Baker, 2 E. D. Smith, 22). Denying an application for an adjournment made orally without oath, held no ground for reversing the judgment (Edwards v. Drew, 2 E. D. Smith, 55); but refusing an adjournment to which a party sbows himself entitled, or imposing improper terms as a condition of the adjournment, is error (Easton v. Coe, 2 Johns. 383; Sebring v. Wheedon, 8 id. 458; Hemstract v. Youngs, 9 id. 364; Beekman v. Wright, 11 id. 442; Annin v. Chase, 13 id. 462; Cross v. Moulton, 15 id. 469). The justice may refuse an adjournment to procure a witness, if the other party will admit the facts expected to be proved by such witness (Brill v. Lord, 14 Johns. 341).

b. Where a justice adjourned a cause with the provision that if the defendant filed security he should have a further adjournment, and the defendant filed the security, but failed to appear on the adjournment day,-held that the justice did right in proceeding to judgment in the absence of defendant (Muber v. Held, 3 Abb. 110).

c. Where the justice, upon the plaintiff opposing an adjournment, denied the defendant's application to adjourn, and afterwards, without proceeding to trial, departed from his office (it does not appear at what hour), stating that it was uncertain at what time he should return-the defendant having left the court, the justice returned about three in the afternoon, resumed his court, and suffered the plaintiff to proceed with his case in the defendant's absence ;on appeal it was held that the justice thus absenting himself, worked a discontinuance of the action (Lynsky v. Pendegrast, 2 E. D. Smith, 43).

d. When the defendant answered, and demanded a jury and cause adjourned to procure a jury, and on the adjournment day he neglected to appear,— held that the justice did right in proceeding to try without a jury and in absence of defendant (Kilpatrick v. Carr, 3 Abb. 117).