a. A party who has had one adjournment after issue joined cannot, on tendering security, have a second adjournment without showing special cause (Powers v. Lockwood, 9 Johns. 133; St. John v. Benedict, 12 id. 418; Farrington v. Payne, 15 id. 432). And the special cause must be shown by affidavit (Edwards v. Drew, 2 E D. Smith, 55). The attorney may make the affidavit (Seers v. Grandy, 1 Johns. 514). To entitle a party to a second adjournment on the ground of the absence of a witness, the affidavit must state and show due diligence to obtain the attendance of such witness. It is not enough to allege that the witness was not within reach of process on the day of making the affidavit (Christman v. Paul, 16 How. 17). The affidavit should also state a reasonable expectation of being able to procure the attendance of the witness on the adjournment day (Onderdok v. Ranlett, 3 Hill, 323); and that the party cannot safely proceed to trial in the absence of such witness (Lynsky v. Pendegrast, 2 E. D. Smith, 43).

b. An adjournment on the ground of absence of witnesses, or to examine a witness on commission, cannot be demanded as a right after the jury is impaneled (Fink v. Hall, 8 Johns. 437; Parmelee v. Thompson, 7 Hill, 77; Matthers v. Feistell, 2 E. D. Smith, 90); and in Aberhall v. Roach, 11 How. 95, it was held that an adjournment for ten days, after a trial had commenced, without the consent and in the face of an objection by the defendant, to enable the plaintiff to obtain the attendance of a witness, rendered the subsequent proceedings and judgment erroneous. Upon showing that a witness subpoenaed does not attend, and on giving security, a defendant is entitled to a second adjournment, and the court cannot impose any terms (Beekman v. Wright, 11 Johns. 442; Annin v. Chase, 13 id. 462; see Belshaw v. Colie, 1 E. D. Smith, 13). Dangerous sickness of defendant's child held sufficient to entitle him to an adjournment (Rose v. Stuyvesant, 8 Johns. 426). Not so the engagement of counsel in another court (Ranney v. Groynne, 3 E. D. Smith, 59).

c. Security on adjournment must be in writing (McNutt v. Johnson, 7 Johns. 18; Stewart v. McGuin, 1 Cow. 99). There is no prescribed form, and if it exceeds the requirements of the statute the surety is bound by it (id.; Fondey v. Cuyler, 1 Wend. 464).

d. Continuing court.-After a trial has commenced, the justice may continue his court from one day to the next if the exigencies of the case require it (Day v. Wilbur, 2 Cai. 134); but, semble, not merely to allow either party to produce further proof (Green v. Angel, 13 Johns. 469); and generally, after a trial is commenced, the justice cannot adjourn, unless by consent of parties, or because it is impossible to finish the trial within a reasonable time (Edwards v. Drew, 2 E. D. Smith, 55; Aberhall v. Roach, 11 How. 95; Wight v. Me Clare, 3 E. D. Smith, 316; Story v. Bishop, 4 id. 423; Gibberton v. Ginochio 1 Hilton, 218; Redfield v. Florence, 2 E. D. Smith, 340; Fairbanks v. Corlies, 1 Abb. 152). The justice inspecting the note sued on, held not to be a commencement of the trial (Olney v. Bacon, 1 Johns. 142).

e. An erroneous adjournment does not make the judgment a nullity; it is good until reversed (Hurd v. Shipman, 6 Barb. 621). The error is cured by the parties afterward going to trial on the merits (Seymour v. Bradfield, 35 Barb. 49).

55. Answer of title.

In every action brought in a court of justice of the peace, where the title to real property shall come in question, the defendant may, either with or without other matter of defense, set forth, in his answer, any matter showing that such title will come in question. Such answer shall be in writing, signed by the defendant or his

attorney, and delivered to the justice. The justice shall thereupon countersign the same, and deliver it to the plaintiff.

a. Setting up title.-Where the complaint is so drawn that the defendant can set up a title in his answer, and on giving the requisite security oust the justice of his jurisdiction, but he omits to set up title, the justice retains his jurisdiction, and the defendant will be precluded from drawing it in question on the trial (Adams v. Rivers, 11 Barb. 390; see Bellows v. Sackett, 15 Barb. 97; Fredonia Plank R'd. Co. v. Wart, 27 Barb. 214, and see note to sec. 59, post).

b. Title in question.—An issue on a license to do an act on real estate แ a claim of which would otherwise be a trespass, does not present for trial title to real property" (Launitz v. Barnum, 4 Sand 637; Muller v. Bayard, 15 Abb. 450; Utter v. Gifford, 25 How 289; Earl of Craven v. Price, 37 How. 15). To set up a license to do an act on real estate, is a very different thing from a claim of title (see 18 Wend. 569); and in an action for taking away rock from plaintiff's land, where the defendant by his answer admitted the plaintiff's title, and he alleged that he entered pursuant to a contract by which he was to remove the rock, and was to have the rock as part of his compensation, it was held that a claim of title to real property did not arise (O'Reilly v. Davies, 4 Sand. 722).

c. Title embraces the right to the possession, and every thing but the bare, naked possession (Ehle v. Quackenboss, 6 Hill, 437). But the question of actual possession is not a question of title (Fredonia Plank Road Co. v. Wait, 27 Barb. 214; Rathbone v. McConnell, 20 Barb. 311). An answer setting up an entry and claim to`land under an executory contract for sale, held, not to constitute a claim of title (Dolittle v. Eddy, 7 Barb. 75; but see Powell v. Rust, 1 Code Rep. N. S. 172).

d. The question of title to land is, in all cases, a question of ownership. The question of title does not arise in an action to recover damages for the breach of an agreement to convey lands, when the only issue made by the pleadings is whether an inchoate right of dower in the wife of defendant was a subsisting incumbrance (Smith v. Riggs, 2 Duer, 622).

e. In an action for killing plaintiff's cows, the answer set up that the Harlem Railroad Company, being possessed of a tract of land in the center of the Fourth avenue, granted the defendants permission to run their cars over a railway laid down on said tract, and that the cows, being unlawfully upon said track, were killed by the engine of the defendants, while lawfully running upon said track,-held, that title was not in question (Longhurst v. New York and New Haven R. R. Co. in the N. Y. Com. Pleas, General Term, July, 1853, Daly and Woodruff, JJ.).

d. Where a party is charged with a liability arising out of his being owner of land, and he disclaims being the owner of that land, this raises a question of title (Regina v. Hardon, 22 Law Jour. Rep. N. S. Q. B. 299; 18 Eng. Law and Eq. R. 403).

f. Where the complaint alleged that defendants unlawfully carried away a quantity of firewood, the property of plaintiffs, and converted same, the defendants answered, that such firewood was cut upon the Tonawanda Reservation; that such reservation is Indian lands, owned and occupied by the Seneca nation of Indians, and that the defendants are Seneca Indians; and that, in their own right as such Indians, they converted said wood, as they lawfully might, held, that the answer set up title to lands (Smith v. Mitten, 13 How. 325; and see Heath v. Barmour, 35 How. 1).

g. In an action for damages from the bite of a dog, an allegation that the plaintiff when injured was in a place where he had no right to be, does not put in issue a claim of title (Pierret v. Moller, 3 E. D. Smith, 574; and see Roulston v. Clark, id. 367).

h. The question of right of way is not a question of title (Little v. Dean, 34

N. Y. 452; Hastings v. Glenn, 1 E. D. Smith, 402), nor does a question of encroachment involve the title (Fleet v. Youngs, 7 Wend. 291; see, however, Hinds v. Page, 6 Abb. N. S. 58).

a. The introduction of a deed as evidence not of title to land, but to establish some other fact, does not raise a question of title (Nichols v. Bain, 27 How. 286; and see Heintz v. Dellinger, 28 How. 39).

b. Where in an action by the assignee of a lessor of a lease in fee, against an assignee of the lease, to recover rent, the complaint alleged that the plaintiff became the owner of the rent, and became seized in fee of the estate in the demised premises, and the defendant denied all allegations of the complaint,—held, that title came in question (Main v. Cooper, 26 Barb. 468; 25 N. Y. 180).

e. Where the action was in substance the former action of waste, and the complaint alleged a forfeiture and prayed a recovery of possession,-held, that title appeared in question on the face of the complaint (Sneyder v. Beyer, 3. E. D. Smith, 235).

d. In an action for falsely representing himself to have title, and thereby obtaining money and goods, a plea of the general issue was held to raise a question of title (Brooks v. Delrymple, 1 Manning's Mich. R. 145).

e. The title to land does not come in question in a suit to recover a tax paid by mistake by the plaintiff on a lot of the defendant's, the defendant's title to the lot being disputed on the trial (Nixon v. Jenkins, 1 Hilton, 318). ƒ. An answer of title may be interposed by an amended answer and after an adjournment (Hinds v. Page, 6 Abb. N. S. 58; Weeks v. Stroble, 36 How. 123). See note to section 304, post.

§ 56. (Am'd 1851, 1858.) Undertaking to be given.

At the time of answering, the defendant shall deliver to the justice a written undertaking, executed by at least one sufficient surety, and approved by the justice, to the effect that if the plaintiff shall, within twenty days thereafter, deposit with the justice a summons and complaint in an action in the supreme court, for the same cause, the defendant will, within twenty days after such deposit, give an admission in writing of the service thereof.

Where the defendant was arrested in the action before the justice, the undertaking shall further provide, that he will, at all times, render himself amenable to the process of the court during the pendency of the action, and to such as may be issued to enforce the judgment therein. In case of failure to comply with the undertaking, the surety shall be liable not exceeding one hundred dollars.

7. Admitting service of summons.—Where a defendant omitted, within the prescribed time, to admit service of a summons and complaint deposited by the plaintiff with a justice of the peace, in pursuance of this section, and upon the plaintiff's bringing an action upon such undertaking the defendant moved in the supreme court for leave to admit service of the summons and complaint, -held, that the court had no power to grant such relief. There was no action pending until the service of the summous (Davis v. Jones, 4 How. 340).

h. It seems it is not necessary for the plaintiff to give notice to the defend

ant of the deposit of the summons and complaint with the justice, the defendant is bound to ascertain the fact of deposit, at the peril of losing his right to answer (ib.).

a. Where a defendant fails to comply literally with the terms of his undertaking filed under this section, omitting to give the written admission of service of the summons and complaint, but puts in his answer in the supreme court, and the plaintiff accepts it without such admission,-held, a substantial performance of the undertaking, and the waiver does not affect the identity of the suits before the justice and in the supreme court (Wiggins v. Tallmadge, 7 How. 404).

b. Undertaking.-It does not seem necessary, or proper, that the defendant should join in the undertaking; nor does it seem necessary that the undertaking should be under seal, or state any consideration; but it should state the place of residence of the surety, and be acknowledged by him. The surety must justify to the amount of $200 (Thompson v. Blanchard, 3 N. Y. 335; and see 17 How. 394; 10 Abb. 454.) The undertaking, when approved, should, it is presumed, rema n in the custody of the justice. Perhaps, in case of two actions and two undertakings with the same surety in each, such surety would have to justify to the amount of $400 (Anon. 4 How. 414). See note to section 60.

§ 57. (Am'd 1851, 1858.) Action discontinued. Costs.

Upon the delivery of the undertaking to the justice, the action before him shall be discontinued, and each party shall pay his own costs. The costs so paid by either party shall be allowed to him, if he recover costs in the action to be brought for the same cause in the supreme court. If no such action be brought within thirty days after the delivery of the undertaking, the defendant's costs before the justice may be recovered of the plaintiff.

$58. If undertaking not given.

If the undertaking be not delivered to the justice, he shall have jurisdiction of the cause, and shall proceed therein; and the defendant shall be precluded, in his defense, from drawing the title in question.

59. (Am'd 1849). The same.

If, however, it appear on the trial, from the plaintiff's own showing, that the title to real property is in question, and such title shall be disputed by the defendant, the justice shall dismiss the action, and render judgment against the plaintiff for the costs.

c. Ousting Justice of Jurisdiction.—Where it appears on the trial, from the plaintiff's own showing, that the title to real property is in question, and such title is disputed, the parties, by consenting that the justice shall adjudicate on the disputed title, do not confer jurisdiction (Stryker v. Mott, 6 Wend. 465; and see Powell v. Rust, 1 Code Rep. N. S. 172; Gage v. Hill, 43 Barb. 44). Where title to real estate is not pleaded, the justice is not ousted of his jurisdiction, because it may be necessary to prove title in order to sustain the action, unless such title is disputed by the defendant (Bellows v.

Sackett, 15 Barb. 97; Fredonia Plank Road Co. v. Wait, 27 Barb, 214; Adams v. Rivers, 11 Barb. 390). To entitle a defendant to a dismissal, he must call the justice's attention specifically to the objection (Brown v. Schofield, 8 Barb. 239).

§ 60. (Am'd 1851, 1858.) Another action may be brought.

When a suit before a justice shall be discontinued by the delivery of an answer and undertaking, as provided in sections 55, 56, and 57, the plaintiff may prosecute an action for the same cause in the supreme court, and shall complain for the same cause of action only on which he relied before the justice; and the answer of the defendant shall set up the same defense only which he made before the justice.

a. Pleadings in new action.—On a new action being brought, the complaint and answer must be as before the justice, without any further or additional pleading (M’Namara v. Bitely, 4 How. 44); and the defendant cannot amend his answer in the supreme court, of course, in matters of substance (Cusson v. Whalon, 1 Code Rep. N. S. 27; Wendell v. Mitchell, 5 How. 424). If the plaintiff complains for a different cause of action, or the defendant sets up a different defense from that used before the justice, the remedy of the adverse party is by motion to strike out the pleading, and require it to be conformed to that in court be'ow (Brotherson v. Wright, 15 Wend. 240; Tuthill v. Clark, 11 ib. 642). But while the plaintiff is restricted to the same cause of action, the restriction does not extend to matters of form; and his complaint in the supreme court may be in a form adapted to that court, although it may differ from the form of his complaint before the justice. The test is, does it state the same cause of action? (People v. Albany Com. Pleas, 19 Wend. 123). A similar rule applies to the answer, and if it state the same ground of defense a mere difference in form between it and the answer before the justice will not invalidate it. The defendant may abandon part of his defense before the justice, when he comes to answer in the supreme court, and yet the defense be the same (Wiggins v. Tallmadge, 7 How. 404).

¿. Appeal to court of appeals.-The suit for the same cause in the supreme court, is an action originally commenced in a court of a justice of the peace (Brown v. Brown, 6 How. 320; Pugsley v. Kesselburgh, 7 ib. 402; 10 N. Y. 420; Wiggins v. Tallmadge, 7 How. 404). An affidavit in support of a motion to dismiss an appeal to the court of appeals from a judgment of the supreme court, because the suit was originally commenced in a court of a justice of the peace, must show the justice was ousted of jurisdiction by the filing an undertaking required by section 56, as well as by the plea of title (Lalliette v. Van Keuren, 7 How. 409). The record need not show the identity of the action in the supreme court with that before the justice. The identity may be shown by affidavit (Pugsley v. Kesselburgh, 10 N. Y. 420. See § 11, ante).

e. Continuing in county court.-In an action prosecuted before a justice, where a plea of title was interposed, and proceedings had for continuing the prosecution in the county court, it was not necessary, in order to give the county court jurisdiction, that it should appear that the defendant was a resident of the county when the action was commenced (Clyde Plank Road Co. v. Baker or Parker, 12 How. 371; 22 Barb. 323).