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scribed in section 901 of this act; and a copy of that section must be annexed thereto, except that subdi. vision sixth thereof may be omitted. Substituted for L. 1838, ch. 243, 4 (4 Eum. 641).

$ 2985. Receipt thereof by justice. The justice, to whom the package containing the commission is transmitted by mail, must receive it from the post-office, and open and file it, indorsing thereupon the date of his so doing. It must remain on file with him, until the trial; but either party is entitled to inspect it on file.

See note to last section.

8 2986. When deposition evidence. Sections 902 and 903 of this act apply to a commission, issued as prescribed in this article ; and to the execution thereof. A deposition taken thereunder may be read in evidence upon the trial by either party, and has the effect speci. fied in section 911 of this act. Same as last section.

$ 2987. Powers of commissioners. Where the commission is executed within the State, the commise sioner, or, if there are two or more, a majority of them, have the same power to issue a subpoena, to swear & witness, and to compel his attendance, that a justice of the peace has, in an action pending before him.

L. 1841, ch. 138, 82 (4 Edm, 546).

TITLE V.

Trial and its incidents
SEC. 2988. Effect of failure of defendant to appear.

2989. When justice to try issue of fact.
2990. When jury trial may be demanded.
2991. Venire.
2992. Id.; in action between two towns, etc.
2993. Delivery, execution, and return of venind
2994. Ballots; how prepared.
2995. Drawing jury.
2996. Talesman.
2997. New venire.
2998. Juror's oath.
2999. Jury to hear proofs.
3000. Witness's oath.
3001. Witness refusing to be sworn, etc. Warrant thereupon.

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Bec. 3002. Contents of warrant; imprisonment of reuubani witness.

3003. Adjournment thereupon.
3004. Ex parte affidavit; when evidence.
3005. Competency of witness; how determined.
3006. Constable to keep jury ; his oath.
3007. Rendition of verdict; plaintiff need not be called.
3008. Jury when to be discharged; new venire.

3009. Fine to be imposed on defaulting juror. $ 2988, Effect of failure of defendant to appear.Where the defendant makes default in appearing or pleading, upon the return of a summons, which has been duly served as prescribed in this chapter, the justice must hear the allegations and proofs of the plaintiff, and render judgment according to law and equity, as the very right of the case appears.

2 R. S. 242, & 92 (2 Edm. 259). Clark v. Van Vranken, 20 Barb.278; Howard v. Brown, 2 E. D. Smith, 247; Ely v. O'Leary, id. 355; Perkins v. Stebbins, 29 Barb. 523; Armstrong v. Smith, 44 id. 123; Humphrey v, Persons, 23 id. 313; Hodges v. Hunt, 22 id. 150; Gregory v. Trainer, 1 Abb. 209; 4 E. D. Smith, 58; Stilwell v. Staples, 3 Abb. 365; 3 Duer. 691 ; Sweet v. Coon, 15 Johns. 86; Alwood v. Austin, 16 id. 180 ; Snell v. Loucks, 11 id. 69; Lowther v. Crummie, 8 Cow. 87 ; Sammis v. Brice, 4 Denio, 576 ; People ex rel. Lynde, 8 Cow. 133; Alburtis v. McCready, 2 E. D. Smith, 39; Appleby v. Strang, 1 Abb. 143; Beach v. McCann, 4 id. 18; 1 Hilt. 256.

$ 2989. When justice to try issue of fact. Where an issue of fact has been joined, if neither party demands a trial by jury, the justice must try the issue, hear the allegations and proofs of the parties, and render judgment as prescribed in the last section.

Id., &91. Wheeler v. Lampman, 14 Johns. 480 ; Peck v. Richmond, 2 E. D. S. 380; Seymour v. Bradfield, 35 Barb. 49; Blanchard v. Richley, 7 Johns. 198; Hathaway v. Elmer, 25 Barb. 29; Gates v. Ward, 17 id.

Wheeler v. N. Y. & H. R. R. Co., 24 id. 414; Shall v. Lathrop, 3 Hill, 237; Olney v. Bacon, 1 Johns. 142 ; Burch v. Westfall, 5 N. Y. Leg. Obs. 178; Dunckle v. Kocker, 11 Barb. 337 ; Breidert v. Vincent, 1 E. D. Smith, 542; Buck v. Waterbury, 13 Barb, 116 ; Tattersall v. Hass, 1 Hilt. 56; Boomer v. Laine, 10 Wend. 525; Young v. Rummell, 2 Hill, 478; Evans v. Williams, 60 Barb. 346; Hall v. Olney, 65 id. 27; Roe v. Hanson, 5 Lans. 304; Clements v. Benjamin, 12 Johns. 299; Reed v. Barber, 3 C. R. 160; Hyland v. Sherman, 2 E. D. S. 231; Carland v. Day, 4 id, 251; Smith v. Compton, 20 Barb. 262; Young ? Hubbell, 3 Johns. 430; El well v. McQueen, io Wend. 519; Peters v. Diossy, 3 E. D. S. 115; Harden v. Woodside, id. 37 ; Harpell v. Curtis, 1 id. 78; Pickert v. Dexter, 12 Wend. 150; Moore v. Noble, 36 How. 385; 53 Barb. 425; Burlingham v. Deyer, 2 Johns. 189; Rosekrans v. Van Antwerp, 4 id. 228; Perry v. Weyman, 1 id. 520 ; Lawrence v. Houghton, 5 id. 129; Cobb v. Curtis, 8 id. 470; Ely v.O'Leary, 2 E. D. Smith, 355; Fox v. Decker, 3 id. 150; Hunter v. Allen, 35 Barb. 42; Tift v. Culver, 3 IIill, 180; Beekman v. Wright, 11 Johns. 441.

$ 2990. When jury trial may be demanded. At the time when an issue of fact is joined either party may demand a trial by jury, and unless so demanded at the joining of issue a jury trial is waived. And (for the purpose of obtaining such a jury) the town clerk of every town in this State shall, within

424;

ten days after this act shall take effect, deliver to each of the justices of the peace in his town a certified copy of the list filed with him, in pursuance of section one thousand and thirtyseven of this Code, and he shall also deliver to each of said justices a certified copy of any such list hereafter filed with him, within ten days after the same shall be so filed. The town clerk is entitled to a fee of one dollar for each copy of said list so delivered. Any town clerk who shall neglect to de liver a copy of the list to each of the justices of the town within the time above prescribed, shall forfeit ten dollars for each failure, to be sued for and recovered by the overseers of the poor of said town for the use of the poor of said town.

Id., & 93, amended. Kilpatrick v. Carr, 3 Abb. 117; Hosford v. Carter, 10 id. 452: Babcock v. Hill, 35 Barb. 52.

§ 2991. Venire. -- When a trial by jury is duly demanded, the justice must forth with openly draw twelve ballots from a box or other receptacle containing the names of the persons who are returned as jurors of the town to the courts of record of the county upon the last list thereof received by him from the town clerk as jurors 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 adjourn. ment of the court, at which a jury trial has been had, the justice nust 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 remaining in the original box, the justice, upon drawing all the ballots therein, must draw the necessary number from the second box contaiping the names of those jurors who have before served, as in this section prescribed, and must continue to draw from that box until a new list of jurors is delivered to him by said town clerk.

Poyer v. N. Y.C.&i R.R.R. Co., 7 Abb. N.C.371; Knight v. Campbell, 62 Barb. 15; Og den v. Parks, 16 Johns. 180; Fenwickr. Parker, 3 C. B. 254; Ilathaway v. Hilmer, 25 Barb. 29; Borst v. Bleecker, 6 Johns. 332.

$ 2992. Id., in action between two towns, etc.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 qualified 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. Id., $96.

S 2993. Delivery, execution and return of venire The justice must insert the names of the jurors so drawn, in a venire, and deliver or cause it to be delivered to a constable of the county disinterested 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 reading 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. person so served and not attending at the time and place to which the cause was so adjourned, is guilty of a contempt of court, punishable by a fine not exceeding teri dollars, which the justice may impose forthwith by an entry in his minutes of the imposition of such fine, to be collected by execution 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, but upon the preseotation 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.

II., 22 97, 98; L. 1817, ch. 470, 2 3 (Edm. 591). Rice v. Buchanan, 41 Barb. 117; Mayor v. Mason, I Abb. 344 ; 4 E. D. Smith, 142; Watkins v. Weaver, 10 Johns. 107; Miles v. Pulver, 3 Den, 84 ; Coon v. Snyder, 19 Johns. 384; Becker v. Sitterly, 58 How. 38.

$ 2994. Ballots; how prepared. — 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, wbo 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. Id., & 99.

$ 2995. Drawing jurors. The justice must then openly draw out, one after another, six of the hallots. 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 å less number than six jurors, at any time before a witness is sword. The persons so selected as berein provided, constitute the jury to try the action.

Id., 2100. McNall v. McClure, 1 Läns. 32; Bullard v. Spoor, 2 Cow, 430); Eggleston v. Smiley, 17 Johns. 133; Clark v. Va Vranken, 20 278; Becker v. Sitterly, 58 Ilow, 38; Brisbane v. Macomber, 56 Barb. 753.

$ 2996. Jurors in default.-If a sufficient number of competent jurors do not attend, the justice shall issue an attachment against all defaulting jurors, and shall place the same in the hands of the officer who summoned the same, commanding him forthwith to attach such jurors and to bring them before him at a time specified not more than thirty-six hours there. after, to which the cause must be adjourned. The juror or jurors so attached shall, in addition to the fine specified in section 2993 of this act, be required to pay the expense of the attachment and service thereof; which shall be the officer's fees, together with all necessary expense incurred by him in serving said attachuient, to be audited and fixed, to be enforced in the same manner, and when collected to be paid to the officer

or the party, who has paid the same. Any person so attached and disobeying or resisting the service of said attachment is guilty of a misdemeanor.

$ 2997. (Amended, 1892.] New venire, etc. If the constable, to whom the venire is delivered, does not return it as required thereby; or it is for any reason set aside, the justice must proceed to draw another jury, in the manner prescribed in the foregoing sections, which shall be summoned in like manner as the first jury. If a full jury, drawn from those returned as prescribed in the foregoing sections cannot be obtained, the jus. tice may direct the constable to require the attendance forthwith, or at such time as he may designate, not longer than twenty-four hours after the issuing thereof, of such a number of talesmen, from the bystanders or from the town, qualified to serve as ju. rors, as he deems sufficient for the purpose ; or in his discretion he may draw from the jury box, double the pumber of jurors required to complete the jury in the manner 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 ob. tained. Nothing hereiubefore contained shall preclude the jus. tice from adjourning the trial of the case, on his own 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. [In effect June 2, 1892.]

8 2998. Juror's oath. - The justice must administer an oath or affirmation to each juror, well and truly to try the matter in difference between

plaintiff, and

de. fendant, and, unless discharged by the justice, a true verdict to give, according to the evidence. (Id., So 103.

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

Id., & 104. Delancey v. Nagle, 16 Barb. 96; Trustees of Penn Yan v. Thorne 6 Hill, 320; Chapman 1. Fuller, 7 Barb. 70; Stroud v. Butler, 18 id. 327 ; Pettit v. Ide, 12 Abb. 44.

$ 3000. Witness's oath. A person offered as a witness must, before any testimony 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. [id., $ 108.

$ 3001. Witness refusing to be sworn, etc. War. rant thereupon. Where a witness, attending before a justice in 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 subpoenaed to produce, as prescribed in section 2969 of this act, or duly required to produce by an order, made as prescribed in section 867 of this act; and the party, at whose instance he attended, makes oath that the testimony of the witness, or that the book or paper is so far material, that without it he cannot safely proceed with the trial of the action, the justice may, by warrant, commit the witness to the jail of the county. Id., 2279, amended. Lane v. Coie, 12 Barb. 680; Bonesteel v. Lynde, llow. 226; Rutherford v. Holmes, 66 N. Y. 363.

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