§ 3005. An objection 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 ques tion of fact; except that, if the witness is examined thereupon 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 be 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 verdict, 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 his docket-book. It is not necessary to call the plaintiff before receiving the verdict; and the plaintiff cannot 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 docketbook, that the justice may render judgment upon the evidence 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 fine, 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 subpoenaed as a witness, and not attending, or attending and refusing to testify. TITLE VI. Judgment; and docketing the same. 8010. Judgment by confession. 3011. Id.; mode of confessing judgment. 3012. Id.; when void. $3013. Judgment of nonsuit. etc. be awarded against him upon the appeal, not exceeding two hundred and fifty dollars. 338. § 2578. [Am'd 1882.] Notice of appeal by an executor, 11 Civ. Pre administrator, testamentary trustee, guardian, or other peron appointed by the surrogate's court, from a decree directing him to pay or distribute money, or to deposit money in a bank or trust company, or to deliver property; or by an executor or administrator from an order, granting leave to issue an execution against him, as prescribed in section eighteen hundred and twenty-five of this act, does not stay the execution of the decree appealed from unless the appellant gives an undertaking, with at least two sureties, in a sum therein specified, to the effect that if the decree or order, or any part thereof, is affirmed, or the appeal is dismissed, the appellant will pay all costs and damages, which may be awared against him upon the appeal, and will pay the sum so directed to be paid or collected, or as the case requires will deposit or distribute the money or deliver the property, so directed to be deposited, distributed, or delivered, or the part thereof as to which the decree or order is confirmed. 266. § 2579. An appeal from a decree or an order, directing 21 App. Div. the commitment of an executor, administrator, testamentary trustee, guardian, or other person appointed by the surrogate's court, or an attorney or counsel employed therein, for disobedience to a direction of the surrogate, or for neglect of duty; or directing the commitment of a person refusing to obey a subpoena, or to testify, when required according to law; does not stay the execution of the decree or order appealed from, unless the appellant gives an undertaking, with at least two sureties, in a sum therein specified, to the effect that, if the decree or order appealed from, or any part thereof, is affirmed, or the appeal is dismissed, the appellant will, within twenty days after the affirmance or dismissal, surrender himself, in obedience to the decree or order, to the custody of the sheriff of the county, wherein he was directed to be committed. If the undertaking is broken, it may be prosecuted in the same manner, and with the same effect, as an administrator's official bond; and the proceeds of the action must be paid or distributed, as dirested by the surrogate, to or among the persons aggrieved, to the extent of the pecuniary injuries sustained by them; and the balance, if any, must be paid into the county treasury. 44. § 2580. The sum specified in an undertaking, executed 11 App. Div. 28 prescribed in either of the last two sections, must, where the appeal is taken from a decree directing the payment, depositing, or distribution of money, be not less than twice the sum directed to be paid, deposited, or distributed. Where the appeal is ta en from an order granting leave to issue an execution, it must be not less than twice the sum, to collect which the execution may issue. In every other The Union Surety and Guaranty Ca #3 Abb. N. C. 428. 4 Dem. 450. 5 d. 228. 74 Hun, 269. 17 Misc. 543 case, it must be fixed by the surrogate, or by a judge of the appellate court, who may require proof, by affidavit, of the value of any property, or of such other facts as he deems proper. The respondent may apply to the appellate court, upon notice, for an order requiring the appellant to increase the sum so fixed. If such an order is granted, ard the appellant makes default in giving the new undertaking, the appeal may be dismissed or the stay dissolved, as the case requires. § 2581. An undertaking, given as prescribed in the last four sections, must be to the people of the State; must contain the name and residence of each of the sureties thereto; must be approved by the surrogate or a judge of the appellate court; and must be filed in the surrogate's office. Except as otherwise specially prescribed, the filing of a proper undertaking, and service of the notice of appeal, perfect the appeal. The surrogate may, at any time, in his discretion, make an order, authorizing any person ag grieved to bring an action upon the undertaking, in his own name, or in the name of the people. Where it is brought in the name of the people, the damages collected must be paid over to the surrogate, and distributed by him, as justice requires, 2582. [Am'd 1881.] An appeal from a decree of a surrogate, admitting a will to probate, or granting letters testamentary, or letters of administration, does not stay the issuing of letters, where, in the opinion of the surrogate, manifested by an order, the preservation of the estate requires that the letters should issue. Letters so issued confer upon the person named therein all the powers and authority, and subject him to all the duties and liabilities of an executor or administrator in an ordinary case, except that they do not confer power to sell real property by virtue of a provision in the will, or to pay or to satisfy a legacy, or distribute the unbequeathed property of the decedent, until after the final termination of the appeal; and in case letters shall have been issued before such appeal the executor or administrator, on a like order of the surrogate, may exercise the powers and authority, subject to the duties, liabilities and exceptions above provided. 2583. An appeal from a decree revoking the probat of a will, or revoking letters testamentary, letters of administration, or letters of guardianship; or from a decree or an order, suspending an executor, administrator, or guardian, or removing or suspending a testamentary trustee, or a freeholder, appointed to execute a decree, as prescribed in title fifth of this chapter, or appointing a temporary administrator, or an appraiser of personal property, does not stay the execution of the decree or order appealed from. 2584. Except as otherwise expressly prescribed in this article, a perfected appeal has the effect, as a stay of the accordingly; except that an execution can be issued thereupon only by the county clerk, as prescribed in section three thousand and forty-three of this act. § 3020. Where an action is brought against two or §§ 1383,1395 more persons, jointly indebted upon contract, and the sum- Consol.Act mons is served upon one or more, but not upon all of them, if the plaintiff recovers judgment, it must be entered against all, in the mode prescribed in section one thousand nine nundred and thirty-two of this act. Sections one thousand nine hundred and thirty-three, one thousand nine hundred and thirty-four, and one thousand nine hundred and thirty five of this act apply to such a judgment, and to each execution issued thereupon; except that, where the justice or the county clerk issues the execution, he must make the indorsement prescribed in section one thousand nine hundred and thirty-four of this act. $ 3021. The justice who gives a transcript of a judg- § 1396, Con ment, taken as prescribed in the last section, must distinctly sol. Act. designate, in the transcript, each defendant who was not summoned. Thereupon the clerk, who dockets the judg ment, must make in the docket, under or opposite the name of each defendant not summoned, an entry, as prescribed in section one thousand nine hundred and thirty-six of this act; and the provisions of that section apply to the judgment so docketed. An action, upon a judgment so docketed, can be maintained in a justice's court against the defendants summoned, only in a like case, and with like effect, as if they were the only defendants in the original action. An action may be maintained against the defendants not summoned, as prescribed in section one thousand nine hundred and thirty-seven of this act, in any court having jurisdiction thereof; and the plaintiff is entitled to costs, upon recovering final judgment therein, where the sum remaining unpaid is twenty-five dollars or more. sol. Act. § 3022. The clerk, with whom a transcript given by a § 1397, Con justice is filed, as prescribed in either of the foregoing sections of this title, must furnish to any person applying therefor, and paying the fees allowed by law, one or more transcripts of the docket of the judgment, attested by his signature. A county clerk, to whom such a transcript is presented, must, upon payment of the fees therefor, immediately file it, and docket the judgment in the appropriate docket-book kept in his office, in like manner as the judg ment was docketed by the first county clerk. The judg ment, when docketed as prescribed in this section, has the like effect, with respect to the enforcement thereof, or any proceedings thereunder, or by virtue thereof, in the county where it was so docketed, as if it was rendered by a justice of the peace of that county, and docketed upon filing his transcript;' except that where an application for leave to issue an execution is necessary, it must be made to the ARTICLE FIFTH. PROVISIONS RELATING GENERALLY TO LETTERS; AND GENERALLY TO EXECUTORS, ADMINISTRATORS, GUARD IANS, AND TESTAMENTARY TRUSTEES. § 2590. Letters testamentary, letters of adminstration, and letters of guardianship must be in the name of the people of the State. Where they are granted by a surrogate, or by an officor or person appointed by the board of supervisors, temporarily acting as surrogate, they must be tested in the name of the officer granting them, signed by him, or by the clerk of the surragate's court, and sealed with the seal of the surrogate's court. Where they are issued out of another court, they must be tested in the name of the judge holding the court, signed by the clerk thereof, and sealed with its seal. § 2591. Subject to the provisions of the next section, regulating the priority among different letters, letters testamentary, letters of administration, and letters of guardianship, granted by a court or officer, having jurisdiction to grant them, as prescribed in this chapter, are conclusive evidence of the authority of the persons to whom they are granted, until the decree granting them is reversed upon appeal, or the letters are revoked, as prescribed in this chapter. § 2592. The person or persons, to whom letters testamentary, or letters of administration are first issued, from a surrogate's court having jurisdiction to issue them, as prescribed in article first of title first of this chapter, have sole and exclusive authority, as executors or administrators, pursuant to the letters, until the letters are revoked, as prescribed by law; and they are entitled to demand and recover from any person, to whom letters upon the same |