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list thereof received by him from the town clerk as furors to attend and try said cause, on a day to which the cause shall then be adjourned by him, not more than eight days from the joining of issue, unless the parties consent to a longer adjournment, which consent shall be entered in the justice's minutes. The ballots shall be of the same description as those prescribed in section two thousand nine hundred and ninety-four of this act, but they may be, or may previously have been prepared by a justice. If a person whose name is thus drawn, in the judgment of the justice, resides more than three miles from the place of trial the justice may set aside such juror, and he may excuse any juror who comes within the provisions of section one thousand and thirty-three of this code, and in either case draw another ballot, and continue to do so until twelve are drawn. After the adjournment of the court, at which a jury trial has been had, the justice must deposit the ballot * containing the names of those who attended and served, in another box kept by him. The ballots containing the names of those who did not appear and serve must be returned by the justice to the box from which they were taken. If at the time of drawing jurors for the court there is not a sufficient number of ballots re maining in the original box, the justice upon drawing all the ballots therein, must draw the necessary number from the second box containing the names of those jurors who have before served, as in this section prescribed, and must coatinue to draw from that box until a new list of jurors is delivered to him by said town clerk,

$ 2992. Where the action is between two towns or cities, or between a town and a city, the venire must direct the constable to notify twelve men of the county, who are qualitied and not exempt, as prescribed in the last section, and who are not interested in the matter at issue, to form a jury for the trial of the action.

$ 2993. [Am'd 1889.) The justice must insert the 22 Miso. 224. names of the jurors so drawn, in a venire and deliver or cause it to be delivered to a constable of the county disin. terested between the parties. The constable must at least three days before the day therein stated, notify each of the persons whose names have been therein inserted, by read. ing it or stating the substance thereof to the person so served. But the service shall not be affected by the constable's failure after diligent search, to find any of the persons so named. The constable must make his return upon the venire, certifying that he has so personally served it upon each of the jurors whose names are therein inserted, or if any were not served, stating the reason for such omission. Any constable making a false return upon such venire is guilty of a misdemeanor. Any person so served and not attending at the time and place to which the cause

So in original

was so adjourned, is guilty of a contempt of court, punish able by a fine not exceeding ten dollars, which the justice may inipose forth with by an entry in his minutes of the im. position of such fine, to be collected by exe ution issued by the justice as upon a judgment, with costs of the levy, and which fine shall be paid over to the use of the poor of the county by the justice, Lut upon the presentation of a reasonable and sufficient excuse by or on behalf of the person so fined, the justice may, at any time, remit such fine, or

any part thereof. Misc. 184, $ 2994. For the purpose of procuring a jury to try the

action, the justice must prepare, or cause to be prepared, ballots, uniform, as nearly as may be, in appearance, by writing the name of each person returned, who attends upon a separate piece of paper. The constable, in the presence of the justice, must roll up or fold each ballot in the same manner, as nearly as may be, so as to resemble the others, and so that the name is not visible. The ballots must be deposited in a box, or other convenient receptacle.

$ 2995. [ Am'd 1889.1 The justice must then penly draw out one after another six of the ballots. If a person whose name is drawn is challenged and set aside, or is excused, another ballot must be drawn, and so on successively, until the required number of jurors is obtained. The parties may elect to try the cause by a less number than sixjurors, at any time before a witness is sworn. The persons so selected as herein provided, constitute ihe jury to try the action.

$ 2996. [Am'd 1889.] If a sufficient number of compe. tent jurors do not attend, the justice shall issue an attach. ment against all defunlting jurors, and sball place the same in the hands of the officer who summoned the same, com manding hin furthwith to attach such jurors and to bring them belore him at a time specitied pot more thau thirty-sii hours ther-after, to which the cause must be ndjourned. The juror or jurors so attached shall, in addition to the fine specified in section two thousand nine hundred and nint ty. three of this act, be required to pay the expense of the attichinent and service thereof ; which shall be the officer's fees, together with all necessary expense incurred liy bim in serving said attachment, to be audited and fixed, to be enforced in the same manner, and when collected to be paisi to the officer or the party who has paid the same. Any per: son so attached and disobeying or resisting the service if Bnid attachment is guilty of a misdemeanor.

§ 2997. [ Amid 1889, 1892.) If the constable to v bom the venire is delivered does not return it as required ihereby, or it is for any reason set aside; the justice must proced to draw another jury, in the manner prescribed in the fore. going sections of this title, which shall be summoned in like manner as the first jury, and if a full jury, drawn from thor returned as prescribed in the foregoing sections can not be obtained, the justice may direct the constable to require the attendance forth with or at such time as he may desigunt, not longer than twenty-four hours after the issuing tereo, of such a number of talesmeo, from the bystanders or from the town, qualified to sei vo as inrors, as he deems sufficient

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for the purpose; or in his discretion be may draw from the jury box double the nuniber of jurors required to completo the jury in the mauner required by the foregoing sections, which shall be summoned in like manner as the first jury, and he shall continue to do so till a jury is obtained. Nothing hereinbefore contained shall preclude the justice from arljourning the trial of the case, on bis motion, or on the application of either of the parties to the action, as provided by sections twenty-nine hundred and fifty nine to twenty-nine hundred and sixty-eight of the code of civil procedure.

$ 2998. The justice must administer an oath or affir. mation to each juror, well and truly to try the matter in difference between

plaintiff, and —, defendaut, and, unless discharged by the justice, a true verdict to give, according to the evidence.

$ 2999. After the jurors have been duly sworn, they must sit together, and hear the allegations and proofs of the parties, which must made publicly, in their presence.

$ 3000. A person offered as a witness, must, before any testimouy is given by him, be duly sworn or affirmed, to the effect that the evidence which he shall give, relating to the matter in difference between plaintiff, and

defendant, shall be the truth, the whole truth, and nothing but the truth.

$ 3001. Where a witness, attending before a justice in 23 Misc. 496. an action, refuses to be sworn or affirmed in the form prescribed by law; or to answer a pertinent and proper question ; or neglects or refuses to produce a book or paper which he has been duly subpænaed to produce, as prescribed in section two thousand nine hundred and sixty. nine of this act, or duly required to produce by an order, made as prescribed in section eight hundred and sixtyseven of this act; and the party, at whose i: stance he attended, makes onth that the testimony of the witness, or that the book or paper, is so far material, that without it he canuot safely proceed with the trial of the action, the justice may, by warrant, commit the witness to the jail of the county.

2 3002. The warrant must specify the canse for which it is issned. If it is issued for refusing to answer a question, the question must be specified therein; if fur neglecting or refusing to produce a book or paper, the same must be described with convenient certainty. The recusant witness must be closely confined, by virtue of the warrant, until he submits to be sworn or affirmed, or to answer, or to produce the book or paper required, as the case may be; or is other. wise discharged according to law.

3003. The justice must thereupon, from time to time, at the request of the party in whose behalf the witness at tended, adjourn the trial, until the witness testifies, or produces the book or paper required, or dies, or becomes a Touutic. or is discharged according to law.

9 3004. An ex parte affidavit shall not be received in evidence upon ntrial, without the consent of both parties, except in a case where it is specially allowed by law.

& 3005. An objeotion to the competency of a witness must be tried and determined by the justice. Where the ground of the objection depends upon a matter of fact, evidence may be given thereupon, as upon any other quem tion of fact; except that, if the witness is examined there upon by the party objecting, no other testimony shall be received from either party as to his competency.

$ 3006. After hearing the allegations and proofs, the jury must be kept together in a private and convenient place, under the charge of a constable, until they all agree upon their verdict; and, for that purpose, the justice shall administer to the constable the following oath: “You swear in the presence of Almighty God, that you will, to the utmost of your ability, keep the persons sworn as jurors upon this trial together, in a private and convenient place, without any meat or drink, except such as shall be ordered by me; that you will not suffer any communication to le made to them, orally or otherwise ; that you will not communicate with them yourself, orally or otherwise, unless by my order, or to ask them whether they have agreed upon their verilict, until they are discharged ; and that you will not before they render their verdict, communicate to any person the state of their deliberations, or the verdict they have agreed upon”.

$ 3007. When the jurors have agreed upon their verdict, they must publicly deliver it to the justice, who must enter it in luis docket-book. It is not necessary to call the plaintif before receiving the verdict; and the plaintiff can. not submit to a nonsuit or withdraw the action, after the cause has been committed to the jury.

& 3008. Where the justice is satisfied that the jurors cannot agree upon a verdict, after having been out a reasonable time, he may discharge them, and issue a new venire, returnable within forty-eight hours; unless the parties consent, and their consent is entered in the justice's docket. book, that the justice may render judgmeut upon the evi. dence already before him; which he may do, in that case.

$ 3009. A person duly notified to attend as a juror, who fails to attend, or, attending, refuses to serve, without a reasonable excuse, proved by his oath, or the oath of another person, is liable to the same tine, to be imposed and collected, with costs, in like manner, and applied to the same use, as is prescribed in article second of title fourth of this chapter, with respect to a person subpænaed as a witness, and not attending, or attending and refusing 10 testify.

TITLE VI. Judgment; and docketing the same. 8010, Judgment by confession. $ 3013. Judgment of nonsuit. 3011. Id.; mode of confessing judgment.

8014. Judgment upon verdict, 3012. Id.; when yoid.

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The Union Surety and Guaranty Co.

SS 3010–3015

JUDGMENT

387

3015. When judgment to be ren. $ 3020. Judgment against joint dered.

debtors. 3916. Remitting part of verdict, 302.. Docketing the fame; ac. etc.

tion thereupon. 30:7. Transcript of judgment; 3022. Docketing judgment in docketing the same.

another county. 3018. Id.;

when execution 3023. Justice may give transmay issue against per

cript, after expiration son.

of his term. 3019. Id.; in action for a chattel. 3010. A justice of the peace may enter a judgment 24, N. Y,

State Per upon the confession of the defendant, in any case, where

532 tie amount confessed does not exceed the sum of five lun«ired dollars, with such a stay of execution, if any, as is agreed upon by the parties to the judgment. $ 3011. A judgment upon confession shall not be ren- 30 App. Div.

173. derel, unless the following requisites are complied with :

1. The defendant must personally appear before the ju-tice.

2. The confession must be in writing, signed by the defendant, and filed with the justice.

3. If the judgment is confessed for a sum exceeding fifty dollars, the confession must be accompanied with the afti. davit of the defendant and of the plaintiff, stating that the defendant is honestly and justly indebted to the plaintiff in the sum specified therein, over and above all just demands which the defendant has against the plaintiff; and that the confession is not made or taken with intent to defraud any creditor.

$ 3012. A judgment confessed, otherwise than as prescribed in the last section, is void, as against every person, except a purchaser in good faith of property, real or personal, thereunder, and the defendant making the confession. $ 3013. Judgment of nonsuit, with costs, must be ren- $ 1882, Con

sol. Act. dered against a plaintiff prosecuting an action before a justice of the peace, in either of the following cases : 19 N Y. State Rep. 295; 9 App. Div. 175.

1. If he discontinues or withdraws the action.

2. If he fails to appear within one hour after the sum. mons is returnable, or within one hour after the time to which the trial has been adjourned.

3. If he is nonsuited upon the trial.

$ 3014. Where a verdict, or the decision of the justice upon a trial without a jury, is rendered in favor of either party, the justice must render judgment against the adverse party in conformity thereto, with costs, except as is otherwise specially prescribed by law.

& 3015. Where the plaintiff is nonsuited, or discontinues 32 Ilan, 363. or withdraws the action ; or where judgment is con- 46 Id. 492. fessed, or a verdict is rendered ; or where, at the close of 19 N. Y.

State Rep. the trial, the defendant is in custody ; the justice must forth with render judgment, and enter it in bis docket-book. 14 Misc. 125. In every other case, he must reuder judgment and enter it 2 App. Div. in his docket book, within four days after the cause has been 1. finally submitted to him.

295.

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