Page images
PDF
EPUB

$ 3002. Contents of warrant; imprisonment of recusant witness.- The warrant must specify the cause for which it is issued. If it is issued for refusing to answer a question, the question must be specified therein; if for 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 otherwise discharged according to law. Id., 8280.

$ 3003. Adjournment thereupon.- The justice inust thereupon, from time to time, at the request of the party in whose behalf the witness attended, adjourn the trial, until the witness testifies, or produces the book or paper required, or dies, or becomes a lunatic, or is discharged according to law. Id,, & 281,

$ 3004. Ex parte affidavit; when evidence. An ex parte affidavit shall not be received in evidence upon a trial, without the consent of both parties, except in a case where it is specially allowed by law, Id., & 105. Wesson v. Chamberlain, 3 N. Y. 331. § 3005. Competency of witness; how determined. - 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 question 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. Id., 2 107. Wiggins v. Wallace, 19 Barb. 338.

$ 3006. Constable to keep jury ; his oath. — 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 ordrink except such as shall be ordered by me; inat 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.'

Id., & 109. Kellogg v. Wilder, 15 Johns. 455; Rose v. Smith, 4 Cow, 17; Dennison v. Collins, 1 id. 111; Durfee v. Eveland, 8 Barb. 46; Baker v. Simmons, 29 id. 198 : Rogers v. Moulthrop, 13 Wend. 274 ; Hancock v. Salmon, 8 Barb. 564 ; Moody v. Pomeroy, 4 Den. 115; Whitney v. Crim, 1 Hill, 61; Henlow v. Leonard, 7 Johns. 200; Thayer v. Van Vleet, 5 id. 111; Benson v. Clark, I Cow. 258; Neil v. Abel, 24 Wend. 185; Taylor v. Betsforu, 13 Johns. 487; Keeler v. Lockwood, Hill and Denio's Supp. 137; Talmanv. Woodworth, 2 Johns. 384; Tower v. Hewett, 11 id. 134; Staly k. Barhite, 2 Cai. 221 ; Douglas v. Blackman, 14 Barb. 381; Day o. Webber, 2 Cai. 134.

§ 3007. Rendition of verdict ; plaintiff need not be called. When the jurors have agreed upon their ver. dict, they must publicly deliver it to the justice, wlio 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.

Id., & 110. Bander v. Lashe, 5 Lans. 335; Rathbone v. Stanton, 6 Baib. 141; Fisk v. Skut, 21 id. 333; Rogers v. Ackerman, 22 id. 134; Dunckle o. Kocker, 11 id. 387; McDonald v. Edgerton, 5 id. 560; Allen v. Godfrey. 44 N. Y. 433 ; Houghtaling v. Osborn, 15 Johns. 119; Wylie v. Hyde, 13 id. 249; Felter v. Mulliner, 2 id. 151; Goodenow v. Travis, 3 id. 428; Page ». Cady, 1 Cow. 115; Brown v. Smith, 3 Cai.81 ; Blake v. Milspaugh, 1 Johns. 316; Blackly v. Sheldon, 7. id. 32 ; Young v. Overacker, id. 191; Hess 0. Beekman, il id. 457 ; Burger v. Kortright, 4 id. 414; Haight v. Bagley, 15 Barb. 499; Putnami v. Shelop, 12 Johns. 435.

$ 3008. Jury when to be discharged; new venire - 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, re. turnable within forty-eight hours; unless the parties consent, and their consent is entered in the justice's docket-book, that the justice may render judgment upon the evidence already before him; which he may do, in that case. Id., & 111. Fiero v. Reynolds, 20 Barb. 275.

3009. Fine to be imposed on defaulting juror. A person duly notified to attend as a juror, who fails to attend, or, attending, refuses to serve, without a reason. able excuse, proved by his oath, or the oath of another person, is liable to the same fine, to be imposed and colo

lected, 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.

Id., & 112, amended; L. 1873, ch. 146 (9 Edm. 580)

[ocr errors]

TITLE VI.

[ocr errors]

Judgment; and docketing the same.
SEC. 3010. Judgment by confession.

3011. Id.; mode of confessing judgment.
3012. Id., when void.
3013. Judgment of nonsuit.
3014. Judgment upon verdict, etc.
3015. When judgment to be rendered.
3016. Remitting part of verdict, etc.
3017. Transcript of judgment; docketing the same.
3018. Id.; when execution may issue against person.
3019. II., in action for a chattel.
3020. Judgment against joint debtors.
3021. Docketing the same; action thereupon.
3022. Docketing juilgment in another county.

3023. Justice may give transcript, after expiration of his term. $ 3010. Judgment by confession. - A justice of the peace may enter a judgment upon the confession of the defendant, in any case, where the amount confessed does not exceed the sum of five hundred dollars, with such a stay of execution, if any, as is agreed upon by the pare ties to the judgment. See post, § 3224. Id., 8 113.

§ 3011. Id.; mode of confessing judgment. — Ajudg. ment upon confession shall not be rendered unless the following requisites are complied with:

1. The defendant must personally appear before the justice.

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 affidavit of the defendant and of the plaintiff, state ing 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, Id., & 114.

§ 3012. Id.; when void. 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 ma ng the confession. Id., & 115.

§ 3013. Judgment of nonsuit.-- Judgment of non. suit, with costs, must be rendered against a plaintiff prosecuting an action before a justice of the peace, in either of the following cases :

1. If he discontinues or withdraws the action.

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

3. If he is nonsuited upon the trial. Id., & 119.

$ 3014. Judgment upon verdict, etc. 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.

Substituted for id., 82 120 and 121. Slaman v. Buckley, 20 Barb. 289; Goodrich v. Sullivan, 1 T. & C. 191; Tift 2. Culver, 3 Hill, 180 ; Stocking v. Driggs, 2 Cai. 96 ; McNamara v. Eisenleff, 14 Abb. N. S. 25 ; Hardy v. Seelye, 3 Abb. 103; 1 Hilt. 90; Scranton v. Levy, 4 id. 21; Camp v. Stewart, 2 E. D. S. 89; Dauchy v. Brown, 41 Barb. 555; Sperry v. Major, 1 E. D. S. 361; People ex rel. Delaware Com. Pleas; Rose 2. Depue, 1 T & C. 16; Donnelly v. Cornell, I C. R. N. S. 288; Nichols v. Atwood, 16 How. 475; Blum . Hartman, 3 Daly, 47: Humphrey v. Persons, 23 Barb. 313; Wesson v. Chamberlain, 3 N. Y.331; Skinnion v. Kelly, 18 id. 355, Bromley v. Smith, 2 Hill, 517; Groff v. Griswold, 1 Den. 432; Reno v. Pinder, 20 N. Y. 298.

§ 3015. When judgment to be rendered. - Where the plaintiff is nonsuited, or discontinues or withdraws the action; or where judgment is confessed, or a verdict is rendered; or where, at the close of the trial, the defendant is in custody ; the justice must forth with render judgment, and enter it in his docket-book. In every other case, he must render judgment, and enter

it in his docket-book, within four days after the cause has been finally submitted to him.

Id., & 124. Keating, v. Terrell, 5 Daly, 278; 1 Sheld. 379; Allen v. God. frey, 44 N. Y. 433; Rice Mead, 22 How. 445; Maxson v. Annas, 1 Den. 204; Prentiss v. Sprague, 1 'lilt. 428; Moon v. Eldred, 3 Hill, 104; Barnes 9. Badger, 41 Barb. 98 ; Watson v. Davis, 19 Wend. 371; Young v. Rum. mell, 5 Hill, 60; Wiseman v. Panama R. R. Co., I Hilt. 300; Bloomer v. Merrill, 29 How. 259; Sibley v. Howard, 3 Denio, 72; Hall v. Tuttle, 6 Hill, 38; Beattie v, Qua, 15 Barb, 132; Schneider v. Armstrong, 1 Sheld. 379; Stephens v. Santee, 49 N. Y. 35; Walrod v. Shuler, 2 id. 134 ; Fish o. Emerson, 44 id. 376.

3016. Remitting part of verdict, etc. - Where a verdict, or the decision of the justice upon a trial with. out a jury, is rendered in favor of either party for a sum of money, the prevailing party may remit any por tion thereof, and take judgment for the residue. Id., & 125. Clark v. Denure, 3 Den. 319.

§ 3017. [Amended, 1894.] Transcript of judgment; docketing the same.- A justice of the peace who renders a judgment, except in an action to recover a chattel, must, upon the application of the party in whose favor the judgment was rendered, and the payment of the fee therefor, deliver to him a transcript of the judgment. The county clerk of the county in which the judgment was rendered must, upon the presentation of the transcript and payment of the fee therefor, if within six years after the rendering thereof, indorse thereupon the date of its receipt, file it in his office and docket the judgment as of the time of the receipt of the transcript in the book kept by him for that purpose, as prescribed in article third, title first of chapter eleven of this act. Thenceforth the judgment is deemed a judgment of the county court of that county, and must be enforced accordingly; except that an execution can be issued thereupon only by the county clerk, as prescribed in section thirty hundred and forty-three of this act, and that the judgment is not a lien upon, and cannot be enforced against, real property, unless it is for twenty-five dollars or more, exclusive of costs. In effect April 17, 1894; Laws 1894, ch. 307. Code of Proc., part of 2 63. Thompson v. Jenks, 2 Abb.Pr. N. 8. 229; Brush v Lee, 3 id. 201, s. C., 36 N. Y. 49; People ex rel. Lynde, 8 Cow. 133; Jackson v. Rowland, 6 Wend. 666; Jackson v. Jones, 9 Cow. 182; Roth v. Schloss, 6 Barb. 308; Fish 1. Emerson, 44 N. Y. 376, Re Shotts, Cow. 306; McGioin v. Lackey, 7 Alb. L. J. 416; Jackson v. Browuer. 7 Wend. 388; Hayden v. McDermott, 9 Abb. 14; Lyon v. Manly, 18 How, 267; 10 Abb. 337; 32 Barb. 51; Martin v. Mayor, 12 Abb. 243; 20 How. 86; 11 Abb. 295; Ilenderson v. Brooky, 3 T. & C. 445; Waitermire *. Westover, 14 N. Y. 16; Hard v. Shipman, 6 Barb. 621 ; Stephens v, Santee, 49 N. Y. 35; Sears v. Burnham, 17 id. 445; Young v. Remer, 4 Barb. 412; Geller v. Hoyt, 7 Ilow. 265.

« PreviousContinue »