Balcom, J.
Subdivision 7 of section 53 of the code confers jurisdiction upon justices of the peace, of actions on judgments rendered in a court of a justice of the peace, where such actions are not prohibited by section 71. Section 71 only prohibits actions upon such judgments for five years after their rendition; which period had expired before this action was commenced. The jurisdiction conferred on justices of the peace of actions upon such judgments, is general; and it is not limited, as it is in most of the other actions of which they have jurisdiction, to' eases in which the amount claimed does not exceed one hundred dollars. The justice, therefore, had jurisdiction of this action upon the judgment of Martin Marcley, Esquire, and to give the plaintiff judgment for the amount due thereon, although it exceeded one hundred dollars.
Before the code was enacted, a justice of the peace could not render a judgment for a sum exceeding one hundred dollars, exclusive of costs, in an action upon a judgment of his own court. (2 R. S. 225, § 2, subd. 1. Laws of 1840, p. 265.) Had the jurisdiction of the justice to render judgment in all cases been limited to one hundred dollars, the defendant would have been under no obligation to appear in the action; because the summons required him “to answer in a civil action, the complaint of Robert Humphrey, to his damage of one hundred and seventy-five dollars.” (Yager v. Hannah, 6 Hill, 631.) The defendant should however have appeared in the action ; as justices of the peace have jurisdiction of some actions, wherein judgments are claimed for sums exceeding one hundred dollars. (Code, § 53, subd. 6, 7.)
It was not necessary to the validity of the judgment in this action, that the summons should have informed the defendant that the plaintiff’s complaint would be upon the judgment of a justice of the peace. (Cornell v. Bennett, 11 Barb. 657. Smith v. Joyce, 12 id. 21. Delancy v. Nagle, 16 id. 96.)
[317]*317The omission, of Martin Marcley, Esquire, to certify in his . docket, that the amounts appearing by such book to be due on the judgments therein, had not? been paid to his knowledge; or to deposit such docket with the clerk of the town of Seward, when he removed from that town, did not affect the validity of the judgments in the docket, or vary the effect of the same as evidence; as the statutes that required him to do so_ are merely directory. (2 R. S. 270, §§ 252, 253, 254.) Marcley could have been punished for such neglect of duty; but the parties to judgments entered in his docket neither lost nor gained by reason of his delinquency.
The fact that the judgment upon which this action is founded was recovered more than six years prior to the commencement of the action, was no cause for reversing the judgment given upon it; for “ the objection that the action was not commenced within the time limited can only be taken by answer.” (Code, § 74. Lefferts v. Hollister, 10 How. Pr. Rep. 383. Per Gray, J, Swift v. Drake, MS. case, General Term, 6th district.) Although the statute applicable to courts held by justices of the peace declares, “ In case a defendant does not appear and answer, the plaintiff cannot recover without proving his case,” (Code, § 64, subd. 8,) the plaintiff need not disprove any defense that must be specially pleaded, to be available to the defendant. All that the plaintiff is obliged to prove, in such a case, is enough to entitle him to recover, if the allegations in his complaint were denied generally, by an answer. It is unnecessary to determine when an action upon a justice’s judgment is barred by sections 90 and 91 of the code ; or the effect of such sections upon justices’ judgments rendered prior to the passage of the code, if such sections extend the time for bringing actions upon such judgments to twenty years.
The judgment of Justice Marcley was not void. His docket furnished sufficient evidence that the summons was returned to him, with the return of a constable thereon endorsed, that he had personally served the same upon the defendant, more than six days prior to the return day therein specified. The day of its service was also stated. Marcley thus acquired ju[318]*318risdiction of the defendant; and having jurisdiction of the action before him, his judgment, if voidable for irregularities thereafter committed, was not void; and it will therefore uphold the judgment given upon it in this action. (Hard v. Shipman, 6 Barb. 621. 4 id. 541 Bromley v. Smith, 2 Hill, 517.) Giving the docket that fair and reasonable construction which the decisions of this court seem to require, it showed a valid judgment against the defendant. (See 2 Hill, 517; 1 Denio, 432 ; 7 Wend. 388 ; 2 Kern. 439.)
Again, the statute prescribing what entries justices of the peace shall make in their dockets, (2 R. S. 268, § 243,) is directory ; and a literal compliance therewith is not necessary, when the entries show the justice had jurisdiction of the parties and the subject matter of the action; and also show the kind and amount of the judgment given, and that it was rendered at a proper time. (2 Hill, 329. 14 Barb. 291.)
Having examined and considered all the points made by the defendant’s counsel, and found no error in the proceedings before the justice, or in his judgment, the judgment of the county court should be reversed, and that of the justice affirmed, with costs.
Gray, J.
This action was brought upon a justice’s judgment rendered in July, 1842, for a sum less than $100, which, with interest upon it when this suit was commenced, exceeded that sum. The only question in the case, involved in any doubt is, whether the code has extended the jurisdiction of justices of the peace in such actions where the amount claimed exceeds $100. It must be conceded that a judgment rendered by a justice of the peace, though it is in the nature of a debt of record, and conclusive between the parties, is, nevertheless, regarded as a contract, and so treated by the courts of this state. (Mather v. Bush, 16 John. 233. Jackson v. Fuller, 6 Cowen, 509, 590. Mitchell v. Hawley, 4 Denio, 414, 416. McGuire v. Gallagher, 2 Sandf. 402, 403.) And if there was no other provision on the subject of the jurisdiction of justices of the peace in actions arising upon contract, than is to be [319]*319found in subdivision 1, of § 53 of the code, it would be expressly limited to cases where the sum claimed does not exceed $100; but in the same section, subd. 6, jurisdiction in an action upon a surety bond is unlimited, and in an action brought upon a judgment rendered in a court of a justice of the peace, jurisdiction is, by subd. 7, of the same section, given in all cases not prohibited by § 71. That only prohibits the right of action within five years, except in specified cases. It is impossible to carry out subd. 7, conferring jurisdiction “in all cases” except those specified, unless jurisdiction is allowed to any amount for which judgment has been rendered, with the interest that has accrued upon it. The increase of jurisdiction is but the amount of interest that has accumulated upon a justice’s judgment rightfully rendered.
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Balcom, J.
Subdivision 7 of section 53 of the code confers jurisdiction upon justices of the peace, of actions on judgments rendered in a court of a justice of the peace, where such actions are not prohibited by section 71. Section 71 only prohibits actions upon such judgments for five years after their rendition; which period had expired before this action was commenced. The jurisdiction conferred on justices of the peace of actions upon such judgments, is general; and it is not limited, as it is in most of the other actions of which they have jurisdiction, to' eases in which the amount claimed does not exceed one hundred dollars. The justice, therefore, had jurisdiction of this action upon the judgment of Martin Marcley, Esquire, and to give the plaintiff judgment for the amount due thereon, although it exceeded one hundred dollars.
Before the code was enacted, a justice of the peace could not render a judgment for a sum exceeding one hundred dollars, exclusive of costs, in an action upon a judgment of his own court. (2 R. S. 225, § 2, subd. 1. Laws of 1840, p. 265.) Had the jurisdiction of the justice to render judgment in all cases been limited to one hundred dollars, the defendant would have been under no obligation to appear in the action; because the summons required him “to answer in a civil action, the complaint of Robert Humphrey, to his damage of one hundred and seventy-five dollars.” (Yager v. Hannah, 6 Hill, 631.) The defendant should however have appeared in the action ; as justices of the peace have jurisdiction of some actions, wherein judgments are claimed for sums exceeding one hundred dollars. (Code, § 53, subd. 6, 7.)
It was not necessary to the validity of the judgment in this action, that the summons should have informed the defendant that the plaintiff’s complaint would be upon the judgment of a justice of the peace. (Cornell v. Bennett, 11 Barb. 657. Smith v. Joyce, 12 id. 21. Delancy v. Nagle, 16 id. 96.)
[317]*317The omission, of Martin Marcley, Esquire, to certify in his . docket, that the amounts appearing by such book to be due on the judgments therein, had not? been paid to his knowledge; or to deposit such docket with the clerk of the town of Seward, when he removed from that town, did not affect the validity of the judgments in the docket, or vary the effect of the same as evidence; as the statutes that required him to do so_ are merely directory. (2 R. S. 270, §§ 252, 253, 254.) Marcley could have been punished for such neglect of duty; but the parties to judgments entered in his docket neither lost nor gained by reason of his delinquency.
The fact that the judgment upon which this action is founded was recovered more than six years prior to the commencement of the action, was no cause for reversing the judgment given upon it; for “ the objection that the action was not commenced within the time limited can only be taken by answer.” (Code, § 74. Lefferts v. Hollister, 10 How. Pr. Rep. 383. Per Gray, J, Swift v. Drake, MS. case, General Term, 6th district.) Although the statute applicable to courts held by justices of the peace declares, “ In case a defendant does not appear and answer, the plaintiff cannot recover without proving his case,” (Code, § 64, subd. 8,) the plaintiff need not disprove any defense that must be specially pleaded, to be available to the defendant. All that the plaintiff is obliged to prove, in such a case, is enough to entitle him to recover, if the allegations in his complaint were denied generally, by an answer. It is unnecessary to determine when an action upon a justice’s judgment is barred by sections 90 and 91 of the code ; or the effect of such sections upon justices’ judgments rendered prior to the passage of the code, if such sections extend the time for bringing actions upon such judgments to twenty years.
The judgment of Justice Marcley was not void. His docket furnished sufficient evidence that the summons was returned to him, with the return of a constable thereon endorsed, that he had personally served the same upon the defendant, more than six days prior to the return day therein specified. The day of its service was also stated. Marcley thus acquired ju[318]*318risdiction of the defendant; and having jurisdiction of the action before him, his judgment, if voidable for irregularities thereafter committed, was not void; and it will therefore uphold the judgment given upon it in this action. (Hard v. Shipman, 6 Barb. 621. 4 id. 541 Bromley v. Smith, 2 Hill, 517.) Giving the docket that fair and reasonable construction which the decisions of this court seem to require, it showed a valid judgment against the defendant. (See 2 Hill, 517; 1 Denio, 432 ; 7 Wend. 388 ; 2 Kern. 439.)
Again, the statute prescribing what entries justices of the peace shall make in their dockets, (2 R. S. 268, § 243,) is directory ; and a literal compliance therewith is not necessary, when the entries show the justice had jurisdiction of the parties and the subject matter of the action; and also show the kind and amount of the judgment given, and that it was rendered at a proper time. (2 Hill, 329. 14 Barb. 291.)
Having examined and considered all the points made by the defendant’s counsel, and found no error in the proceedings before the justice, or in his judgment, the judgment of the county court should be reversed, and that of the justice affirmed, with costs.
Gray, J.
This action was brought upon a justice’s judgment rendered in July, 1842, for a sum less than $100, which, with interest upon it when this suit was commenced, exceeded that sum. The only question in the case, involved in any doubt is, whether the code has extended the jurisdiction of justices of the peace in such actions where the amount claimed exceeds $100. It must be conceded that a judgment rendered by a justice of the peace, though it is in the nature of a debt of record, and conclusive between the parties, is, nevertheless, regarded as a contract, and so treated by the courts of this state. (Mather v. Bush, 16 John. 233. Jackson v. Fuller, 6 Cowen, 509, 590. Mitchell v. Hawley, 4 Denio, 414, 416. McGuire v. Gallagher, 2 Sandf. 402, 403.) And if there was no other provision on the subject of the jurisdiction of justices of the peace in actions arising upon contract, than is to be [319]*319found in subdivision 1, of § 53 of the code, it would be expressly limited to cases where the sum claimed does not exceed $100; but in the same section, subd. 6, jurisdiction in an action upon a surety bond is unlimited, and in an action brought upon a judgment rendered in a court of a justice of the peace, jurisdiction is, by subd. 7, of the same section, given in all cases not prohibited by § 71. That only prohibits the right of action within five years, except in specified cases. It is impossible to carry out subd. 7, conferring jurisdiction “in all cases” except those specified, unless jurisdiction is allowed to any amount for which judgment has been rendered, with the interest that has accrued upon it. The increase of jurisdiction is but the amount of interest that has accumulated upon a justice’s judgment rightfully rendered. Ho intricate question could arise, more than upon a judgment for a less amount. There is nothing alarming in the exercise of such a jurisdiction, that calls upon a court for a subtle construction ef the statute, to prevent its exercise. The fair construction of the three subdivisions of § 53 (1, 6 and 7,) when considered together, is that civil jurisdiction is conferred upon justices of the peace in actions arising upon contract, for the recovery of money only, if the sum claimed do not exceed $100, except where the action is upon a surety bond, or on a judgment rendered in a court of a justice of the peace; and in these actions, the jurisdiction may be exercised in all eases, except when prohibited by § 71. It is no objection to the plaintiff’s right to recover, that more than six years elapsed after the judgment was rendered, before this suit was brought upon it. The defendant, to have availed himself of this objection, should have appeared and pleaded the statute. This we held in the case of Swift v. Drake, several terms since. I am therefore of opinion that .the judgment of the county court should be reversed, and that of the justice affirmed.
Mason, J.
The objection raised to the validity of the judgment in this case, on the ground that the justice had not jurisdiction to render judgment for $175, is not well taken. The [320]*320action was upon a judgment rendered in a justice’s court. Justices’ courts had jurisdiction, under the code, in actions upon justices’ judgments, without limit as to amount. Section 52 of the code repeals all statutes giving or limiting the jurisdiction of justices’ courts. By section 53, justices’ courts now have jurisdiction in the actions enumerated in subdivisions 1, 2, 3, 4, 5 and 9, to the amount of $100, and in subdivision 8, to the amount of $250, and in subdivisions 6 and 7, to any amount. It seems to me too clear to be questioned that by subdivision 7, of section 53 of the code, justices have now jurisdiction of all actions upon justices’ judgments, without reference to amount. The summons in a justice’s court need not state the nature of the action. (Cornell v. Bennett, 11 Barb. 657. Smith v. Joyce, 12 id. 21.) But if the nature of the action be stated, the plaintiff may complain for another cause of action. The docket of the justice, which was given in evidence, to prove the judgment rendered by Justice Marcley, although not very formal or full in its statements, yet contains enough to show that Marcley had jurisdiction of the parties and of the subject matter of the action ; and I am of opinion that the docket sufficiently shows that a judgment was rendered in favor of the plaintiff and against the defendant, for $92 damages and $3.46 costs. The county court erred in reversing the judgment of the justice in this case on the ground that the statute of limitations was a bar to the action. We held in the ease of Swift v. Drake, that the statute of limitations cannot avail the defendant, under the code, unless he pleads it, any more than under our former system. (See MS. opinion of Gray, justice. Also Lefferts v. Hollister, 10 How. Pr. Rep. 383.) The. judgment of the county court should be reversed, and that of the justice affirmed.
[Broome General Term,
January 13, 1857.
Judgment of the county court reversed, and that of the justice affirmed, with costs.
Gray, Mason and Bottom, Justices.]