Where counterclaim before justice amounted to more than $200, remitter can not be entered in superior court so as to cure jurisdiction: Ijames v. McClamroch, 92-362.

As to what is "principal sum demanded," see annotations under section 1419.

Where summons did not state amount demanded, but plaintiff in his complaint claimed only $200 and forgave and remitted the excess of his account, superior court can allow summons to be amended, not to confer jurisdiction, but only to show it: McPhail v. Johnson, 115-298, and cases cited on page 302.

1422. Where title to real estate is in controversy. In every action brought in a court of a justice of the peace, where the title to real estate comes in controversy, 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.

Code, s. 836. For important annotations on this subject, see under section 1419.

Mere allegation of defendant that title is in controversy will not oust justice's jurisdiction: Pasterfield v. Sawyer, 132-258; McDonald v. Ingram, 124-272; Alexander v. Gibbon, 118-805; Paine v. Cureton, 114-608; Hahn v. Guilford, 87-172; Foster v. Penry, 77-160-but it must also appear by evidence, Pasterfield v. Sawyer, 132-260-and justice should proceed with trial until evidence shows that title to land is involved, McDonald v. Ingram, 124-272; Smith v. Garris, 131-36; Parker v. Allen, 84-466.

It matters not that defendant filed no defense in writing to the effect that title to land would be brought in question, statute requires that when at the trial it appears in controversy, action should be dismissed: Edwards v. Cowper, 99-423, and cases cited.

The requirement that answer showing that title is in controversy shall be in writing and signed is not satisfied by brief memorandum taken down by justice and transmitted with appeal, and would not, if plaintiff should afterwards sue in superior court, estop defendant from denying jurisdiction: Evans v. Williamson, 79-88; see Brown v. Southerland, 142-228.

1423. Title to real estate in controversy, action dismissed. If it appears on the trial that the title to real estate is in controversy, the justice shall dismiss the action and render judgment against the plaintiff for costs.

Code, s. 837. As to when title to real estate in controversy, see under section 1419; also see section 1422.

As to meaning of words "real estate" in this section, see Foster v. Penry, 77-161.

The allegation in writing that title to land in controversy need not be made: Edwards v. Cowper, 99-423-and if made, justice can not act on it

alone, Pasterfield v. Sawyer, 132-258; McDonald v. Ingram, 124-272; Alexander v. Gibbon, 118-805; Paine v. Cureton, 114-608; Hahn v. Guilford, 87-172; Foster v. Penry, 77-160-but trial must proceed until evidence shows that title involved, McDonald v. Ingram, 124-272; Smith v. Garris, 131-36; Parker v. Allen, 84-466—when it is required of justice that he dismiss the action: Hudson v. Hodge, 139-308; Edwards v. Cowper, 99-421; Parker v. Allen, 84-466.

1424. Another action may be brought; estoppel by former plea. When an action, before a justice is dismissed upon answer, and proof by the defendant, that the title to real estate is in controversy in the case, the plaintiff may prosecute an action for the same cause in the superior court, and the defendant shall not be admitted in that court to deny the jurisdiction by an answer contradicting his answer in the justice's court.

Code, s. 838. Where action before justice was dismissed upon answer and proof that title to real estate comes in controversy, defendant can not question jurisdiction of superior court if action for same cause subsequently brought in that court: Pasterfield v. Sawyer, 132-260-and where justice refused to dismiss upon such grounds and judgment reversed and action dismissed in superior court, and another action brought in superior court for same relief, held plaintiff estopped by former judgment from alleging want of jurisdiction in superior court, Peck v. Culberson, 104-425 -but where written answer alleging that title will come in controversy was not filed before justice, defendant not estopped in superior court from denying jurisdiction by answer contradicting answer before justice, Evans v. Williamson, 79-88.

Section can not be invoked where it does not appear that action before justice was dismissed upon answer and proof by defendant that title to real estate was in controversy, as this can not be inferred: Brown v. Southerland, 142-225.

1425. May issue process and try causes, where. A justice of the peace may issue a summons or other process anywhere in his county, but he shall not be compelled to try a cause out of the township for which he was elected or appointed.

Code, s. 824. Summons issued by one justice can not be made returnable before another, except in cases of bastardy: Williams v. Bowling, 111295-or of summary ejectment under landlord and tenant act.

1426. Profane swearing punished as a contempt. If any person shall profanely swear or curse in the hearing of a justice of the peace, holding court, the justice may commit him for contempt, or fine him not exceeding five dollars.

Code, s. 848; R. C., c. 115; 1741, e. 30.

IV. CRIMINAL JURISDICTION.

1427. Jurisdiction in criminal actions. Justices of the peace shall have exclusive original jurisdiction of all assaults, assaults and batteries, and affrays, where no deadly weapon is used and no serious damage is done, and of all criminal matters arising within their counties, where the punishment prescribed by law shall not exceed a fine of fifty dollars, or imprisonment for thirty days: Provided, that justices of the peace shall have no jurisdiction over assaults with intent to kill, or assaults with intent to commit rape, except as committing magistrates: Provided further, that nothing in this section shall prevent the superior or criminal courts from finally hearing and determining such affrays as shall be committed within. one mile of the place where and during the time such court is being held; nor shall this section be construed to prevent said courts. from assuming jurisdiction of all offenses whereof exclusive original jurisdiction is given to justices of the peace if some justice of the peace, within twelve months after the commission of the offense, shall not have proceeded to take official cognizance of the same.

Const., Art. IV, s. 27; Code, s. 892; 1889, c. 504, s. 2. For criminal procedure in justice's court, see chapter Criminal Procedure.

Section held constitutional: State v. Johnson, 64-581; State v. Huntley, 31-619.

The legal existence of court can not be drawn in question by a plea to the jurisdiction for such a plea presupposes that court was regularly called and organized: State v. Hall, 142-710.

Justice has jurisdiction of simple assault where no deadly weapon used or serious damage inflicted: State v. Johnson, 94-863-where statute prescribes fine not less than $10 nor more than $50 and no imprisonment imposed, State v. Davis, 129-570-where punishment prescribed is fine of not less than $20 nor more than $40, State v. Addington, 121-538-where punishment for offense can not exceed fine of $50 or imprisonment for thirty days, State v. Harrison, 126-1049; State v. Fesperman, 108-771; State v. Deaton, 101-729; State v. Dalton, 101-682; State v. Lachman, 98-765; State v. Roberts, 98-756; State v. Powell, 86-642; State v. Watts, 85-519; State v. Benthall, 82-665; State v. Edney, 80-360; State v. Heidelburg, 70496-of offense of failing to work roads under section 3779; State v. Craig, 82-668-of trespass upon land after being forbidden under section 3688, State v. Dudley, 83-660-of cruelty to animals, State v. Bossee, 145-579— of crime of hunting on Sunday under section 3842, State v. Wilson, 84777 of misdemeanors arising from violations of town ordinances, State v. Wood, 94-855; State v. Cainan, 94-880-of affrays, concurrently with superior court, committed within mile of courthouse while court in session, State v. Battle, 130-656; State v. Bowers, 94-910.

Superior court and not justice has jurisdiction of assaults with deadly weapons: State v. Roseman, 108-766; State v. Phillips, 104-786; State v. Murphy, 101-701; State v. Cunningham, 94-824; State v. Taylor, 84-774;

State v. Moore, 82-659-of assaults where serious damage done, State v. Shelly, 98-673; State v. Cunningham, 94-824; State v. Huntley, 91-617; State v. Taylor, 84-773; State v. Moore, 82-659-of assault with intent to kill or commit rape, State v. Taylor, 84-773; State v. Moore, 82-659-of offense of retailing spirituous liquors without license, State v. Edwards, 113-653; State v. Deaton, 101-728-of offenses against local option act, State v. Cooper, 101-689-of allowing stock to run at large where statute permits fine of $10 for each hog permitted to run at large and warrant charges running at large of ten hogs, State v. Wiseman, 131-795-where offense punishable by fine and imprisonment in discretion of court, State v. Cherry, 72-124; State v. Perry, 71-523; State v. Heidelburg, 70-496-of misdemeanor punishable by fine of not less than $10 nor more than $50, or by imprisonment of not less than ten days, State v. Hampton, 77-526. After expiration of six months [now twelve months] superior court has concurrent jurisdiction with justice of cases which before justice had exclusive jurisdiction: State v. Dalton, 101-682; State v. Roberts, 98-756; State v. Reaves, 85-553; State v. Watts, 85-519; State v. Berry, 83-604; State v. Moore, 82-659; State v. Hooper, 82-663.

Where indictment charges assault with deadly weapon, or other offense of which superior court has jurisdiction, and proof shows simple assault, or other lesser degree of offense, jurisdiction of superior court not ousted: State v. Fritz, 133-725; State v. Price, 111-705; State v. Roseman, 108765; State v. Fesperman, 108-770; State v. Porter, 101-715; State v. Earnest, 98-740; State v. Johnson, 94-863; State v. Cunningham, 94-824; State v. Russell, 91-624; State v. Speller, 91-526; State v. Ray, 89-587; State v. Reaves, 85-553-though charge of simple assault in indictment would give superior court prima facie jurisdiction and burden is on defendant to show twelve months had not elapsed since commission of offense and before superior court took jurisdiction, State v. Shelly, 98-673; State v. Fesperman, 108-771; State v. Porter, 101-714; State v. Earnest, 98-743; State v. Moore, 82-662.

Affray is cognizable in superior court as to both defendants where deadly weapon used by either: State v. Coppersmith, 88-614.

Objection to jurisdiction is a matter of defense and may be taken advantage of under plea of not guilty: State v. Reaves, 85-553; State v. Berry, 83-604; State v. Taylor, 83-601; State v. Moore, 82-659; State v. Hooper, 82-663. If justice had no jurisdiction, the superior court will have none where the trial is on the warrant: State v. Wiseman, 131-795.

"DEADLY WEAPON." A deadly weapon is not one that must or may kill, but one which would likely produce death by manner of its use by defendant: State v. Sinclair, 120-603; State v. Archbell, 139-537; State v. Norwood, 115-789-is an instrument capable of producing death, State v. Huntley, 91-617-some weapons being deadly per se, others owing to manner of use become deadly, State v. Archbell, 139-537; State v. Huntley, 91617-but a club is ex vi termini a deadly weapon, State v. Phillips, 104786; State v. Porter, 101-713-as is also an axe, State v. Shields, 110-497and court will take judicial notice that a pistol is also a deadly weapon, State v. Swann, 65-330.

Whether weapon used is a deadly weapon is a question of law for the court where there is no dispute about the facts concerning its character, size, etc.: State v. Sinclair, 120-603; State v. Norwood, 115-789; State v. Phillips, 104-786; State v. Speaks, 94-865; State v. Huntley, 91-617; State v. West, 51-505; State v. Collins, 30-407; State v. Craton, 28-164—and in determining the question, the size, nature and manner of use of weapon, and size and strength of assailant, and person upon whom it is used, should be considered, State v. Sinclair, 120-603-as a penknife, as well as a gun, may, under certain circumstances, be a deadly weapon, Ibid-for even a pin is a deadly weapon where it is pushed down the throat of an infant, producing death, State v. Norwood, 115-789. Where the deadly character of the weapon is to be determined by the relative size and condition of the parties and the manner in which it is used, it is proper and necessary to submit the matter to jury with proper instructions: State v. Archbell, 139537.

"SERIOUS DAMAGE DONE." It is necessary to describe the serious damage done, its character and extent, so that court can see from face of indictment that the damage was serious: State v. Battle, 130-657; State v. Stafford, 113-635; State v. Phillips, 104-786; State v. Porter, 101-713; State v. Shelly, 98-673; State v. Earnest, 98-740; State v. Russell, 91-624; State v. Moore, 82-659. "Serious damage" must be such physical injury as gives rise to great bodily pain: State v. Nash, 109-824-and also damage to the peace, good order, decencies and proprieties of society, State v. Huntley, 91-620.

AFFRAY. Affray is the fighting together of two or more persons in a public place to the terror of the citizens: State v. Allen, 11-356; State v. Woody, 47-335; State v. Perry, 50-10-or the using of abusive language in a public place bringing on a fight, State v. Perry, 50-9; State v. Robbins, 78-431.

Justice has final original jurisdiction of affrays where no deadly weapon used or serious damage done: State v. Shields, 78-417; State v. Davis, 65-298-but where affray committed within a mile of courthouse while court in session, the justice has concurrent jurisdiction with superior court, State v. Battle, 130-656; State v. Bowers, 94-910.

V. JURORS.

1428. Jury list furnished. The clerk of the board of commissioners shall furnish, on demand, to each justice of the peace in the county, a list of the jurors for the township for which such justice is elected or appointed.

Code, s. 854. 1957, 1958.

As to how commissioners select jury lists, see sections

1429. To keep jury box. Each justice shall keep a jury box, having two divisions marked respectively number one and number two, and having two locks, the key to be kept by the justice.

Code, s. 855. For annotations concerning jury box of county, of interest also in connection with this section, see section 1958.