On an appeal from this court it was objected that the judgment was not actually entered within four days of the hearing, the court said,-We do not think the objection that the judgment was not actually entered until after four days, a sufficient ground of reversal. The statute requiring justices to enter judgment in their dockets within four days, does not apply to the marine court. The judgment was pronounced within the period limited by the act, and although it may be true that the time for appealing would not begin to run until the judgment was actually rendered, we think the statute was sufficiently complied with. Cohen v. Coit, 3 Code Rep. 23.

CHAPTER II.

Justices' Courts, in New-York City.

§ 66. [59.] Jurisdiction.-The assistant justices' courts in the city of New-York, shall hereafter be styled the justices' courts in the city of New-York, and shall have jurisdiction. in the following cases:

1. In actions similar to those in which justices of the peace have jurisdiction, as provided by sections 53 and 54.

2. In an action upon the charter or a by-law of the corporation of the city of New-York, where the penalty or forfeiture shall not exceed one hundred dollars.

See Laws of 1848, c. 153, p. 249. The statute permitted a non-resident plaintiff to sue in a justice's court by a short summons, having not less than two nor more than four days to run. He could also sue by the ordinary summons, having not less than six nor more than twelve days to run. Such a plaintiff sued by a summons, dated January 12, and returnable Monday, January 17; and it was held, that such a summons conferred no jurisdiction. King v. Dowdall, 2 Sandf. S. C. R. 131, 3 Code Rep. 200. An assistant justice has jurisdiction where the plaintiff resides in his district, thus where the plaintiff resided in the eighth ward, being one of the wards for which the justice was appointed, and one of the defendants resided in Queen's County, and the other in the twelfth ward, it was held, the justice had jurisdiction. Murphy v. Mooney, 2 Sand. S. C. R. 288, 3 Code Rep. 200. But an assistant justice elected under the act of 1848, has no jurisdiction where the defendant and one of the plaintiffs reside in the city, and neither of the parties reside in a ward within the justice's district. Cornell v. Smith, 2 Sand. S. C. R. 290, 3 Code Rep. 201. Appearing and pleading without objection, do not waive the defect, nor confer jurisdiction, the statute being peremptory that the justice shall dismiss the cause. Ib. Hence an objection that a justice's court has not jurisdiction of the person is not waived by an answer omitting to raise it. Ib. The justice need not wait an hour after the time for appearance mentioned in the summons, before proceeding with the cause. Klenck v. De Forest, 3 Code Rep. 185. See 2 R. S. 323.

And by Laws of 1848, p. 404, it is enacted, that the justices' courts of the city of New-York, established by the act in relation to justices' and police courts in the city of New-York, passed March 30, 1848, shall be designated as the assistant justices' courts in the city of New-York, and such courts shall be deemed to be the courts referred to in the code, as the assistant justices' courts of the city of New-York, and shall have the jurisdiction mentioned in section 59 (now 66) of that act.

CHAPTER III.

The Justices' Courts of Cities.

§ 67. [60.] Jurisdiction.-The justices' courts of cities shall have jurisdiction in the following cases, and no other: 1. In actions similar to those in which justices of the peace have jurisdiction, as provided by sections 53 and 54.

2. In an action upon the charter or by-laws of the corporations of their respective cities, where the penalty or forfeiture shall not exceed one hundred dollars.

See as to these courts 2 R. S. 323. Laws of 1848, p. 66, enact that all the provisions of the act entitled "An act in relation to fraudulent debtors," passed March 30th, 1838, shall extend to judgments rendered before the justices' courts of the cities of Albany, Troy, and Hudson.

And Laws of 1849, p. 23, enact that the courts of justices' of the peace in the city of Rochester, shall have jurisdiction in actions upon the charter, or by-laws of said corporation, where the penalty or forfeiture shall not exceed $100. Are these provisions repealed?

CHAPTER IV.

General Provisions.

§ 68. [61.] (Amended.)-Sections 55 to 64 applicable to this title. The provisions of sections 55 to 64, both inclusive, relating to forms of action, to pleadings, to the times of commencing actions, to the rules of evidence, to filing and docketing transcripts of judgments, to their effect and the mode of enforcing them, and to proceedings where title to real property shall come in question, shall apply to the courts embraced in this title; except that after the discontinuance of the action in the inferior court, upon an answer of title, the new action may be brought either in the supreme court, or in any other court having jurisdiction thereof; and except, also, that in the city and county of New-York, a judgment of twentyfive dollars or over, exclusive of costs, the transcript whereof is docketed in the office of the clerk of that county, shall have the same effect as a lien, and be enforced in the same manner

as, and be deemed a judgment of the court of common pleas for the city and county of New-York.

The amendment is the insertion of the words-" and be deemed " printed in italic. No doubt the legislature intended to substitute the word "county" for the word supreme in this section, but they have not done so.

The justice is bound to give a transcript on demand to any party interested in the judgment, on being paid for such transcript. (Laws of 1841, p. 114.) If the justice refuses, a mandamus will lie to compel the delivery of the transcript. 8 Cow. 133. The filing a transcript deprives the justice of any further control over the judgment. Re Sholts, 2 Cow. 506. The transcript may be made after the expiration of the justices' term of office. Maynard v. Thompson, 8 Wend. 393; and it need not show jurisdiction on its face. Jackson v. Rowland, 6 Wend. 666. Jackson v. Jones, 9 Cow. 182, 10 Cow. 233. Jackson v. Lowes, 9, Cow. 182, 10 Cow. 233. This section corresponds to section 61 in the code of 1848, and that section was held not to make sections 143 and 148 (ss. 121, 127.) applicable to pleadings in justices' courts. Cornell v. Smith, 2 S. C. R. 290, 3 Code Rep. 201. But section 168 has been held to be applicable to pleadings in justices' courts. See note to sections 63 and 168.

After a judgment in a county court of one county, if an execution be issued into another county before any transcript filed in that county, the court may order a transcript to be filed nunc pro tune. Roth v. Schloss, 6 Barb. S. C. R. 308.

SECTION 69. Distinction between actions at law and suits in equity, abolished. 70. Parties how designated.

71. Actions on judgments.

72. Feigned issues, abolished.

$69. [62.] Distinction between actions at law and suits in equity abolished.The distinction between actions at law, and suits in equity, and the forms of all such actions and suits, heretofore existing, are abolished; and there shall be in this state, hereafter, but one form of action, for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a civil action.

The effect of this section has been much discussed and has elicited remarks in several cases. In Shaw v. Jayne, (4 Pr. R. 119, 122.) Welles J. said, it is a mistake to suppose that the distinction between law and equity is abolished, it is only the distinction of actions that is abolished. The common law remains as much the standard of civil rights as ever, it is the great rule of action for the citizen. Equity is as it always was auxiliary to the common law, and is never to be invoked excepting where the rules of law are found inadequate to afford such relief, as the peculiar

circumstances of particular cases demand, and per Mason J. While, however, the code has abolished all distinction between law and equity, so far as the form of the action and the jurisdiction of this (the supreme) court, is concerned, and so far as the mode of commencing suits and the forms of pleadings, &c. are concerned, still there is recognized so far as the forum (that is a jury or the court,) before which the trial shall be had, to a certain extent a distinction still, Hill v. Mc Carthy, 3 Code Rep. 49. Again Willard says: "The code has abolished the distinction of the forms of action which formerly existed; but for the purposes of costs at least, it recognizes the character of actions as formerly understood." Hinds v. Myers, 4 Pr. R. 316, 357, and per Barculo J.

"Although the forms of actions are abolished, the principles which govern them are retained." McMaster v. Booth, 4 Pr. R. 427, 428, 3 Code Rep. 111.

Again, Gridley J., says: It should not be forgotten that all distinctions between actions at law and suits in equity has been abolished. Munson v. Hagerman, 5 Pr. R. 223, 226, and see also per Welles, J. in Merrifield v. Cooley, 5 Pr. R. 272, 273. In another case (Row v. Row, 4 Pr. R. 133.) Barculo J., said, "The legal action of the code is expressly substituted for suits in equity. All the foregoing cases were decided in the supreme court, but the question has been passed upon in the superior court of the city of New-York, and at a general term of that court, present Oakley Ch. J., and Sandford and Paine, J J., it was said:

A much broader effect has been claimed for the abolition of the distinction between legal and equitable remedies than was ever intended by the Legislature. The first section of the code shows what was intended by the word "remedies." It is limited to actions and special proceedings, and the declared object of the preamble to the code is simply to abolish the distinction between legal and equitable actions. There is no ground for supposing that there was any design to abolish the distinction between the modes of relief known to the law as legal and equitable, or to substitute the one for the other, in any case. Those modes of relief-the judgment or the decree to which a party, upon a certain state of facts, was entitled, were fixed by the law of the land. No inference or deduction from a statute, nothing short of a positive enactment, could change them. The code contains no such enactment, and we do not perceive in it any countenance for an inference or deduction to that effect. Linden v. Fritz, 3 Code Rep. 164. 5 Pr. R. 188, 191. In the last named case the important question was passed upon as to the course to be pursued where a party has co-existent both a legal and equitable remedy. In that case the complaint was to recover possession of leasehold property for alleged breaches of the covenants in the lease. The complaint, after setting forth the violations of covenant for which the plaintiffs sought to recover, prayed for a judgment of forfeiture of the term of years that the defendants be for that cause dispossessed, and that the plaintiffs be put into possession of the premises. It then prayed for an injunction to restrain the defendants from making alterations in the buildings, and from using them for retailing liquors, and in other modes prohibited by the covenants in the lease. The court said: The forfeiture and re-entry prayed, are the relief heretofore granted in the action of ejectment brought for the recovery of demised premises. The injunction asked, is purely equitable relief, heretofore given in a chancery suit, and in conformity to the principles of equity. The ejectment brought to effect a re-entry, for breaches of the condition in a lease, has always been regarded in the law as a hard action-one strictissimi juris; and the English chancery reports abound in cases in which the courts of equity have been importuned to relieve tenants against the forfeitures claimed in such actions. A proceeding like that before us would never have been thought of under the system of remedies in force prior to the code. Equity abhors forfeitures, and always relieves against them when possible to do so; and no man would have ventured under that system, to ask her for one of her most benign remedies, while in the same breath he demanded from her a rigorous forfeiture of his opponent's estate in the subject of the controversy. Does the code make any change in this respect? Can a plaintiff, under the code, ask for equitable relief, and in the same suit demand a forfeiture? We are clear that the code has not altered the rule. It has abolished the distinction between the legal and equitable remedies, but it has not changed the inherent difference between legal and equitable relief. Under the code, the proper relief, whether legal or equitable, will be administered in the same form of proceeding. In some cases, alternative relief may be prayed, and relief be granted, in one or the other form, in which cases an action at law was necessary before, to attain