[Id., § 87, amended by requiring the amount of the fine to be stated; and by substituting the final clause for, "the overseers of the poor of the town."] ART. 3. thereupon § 2977. If the whole amount of the fine and costs is not forth Execution with paid to the justice, he must issue an execution, directed generally to any constable of the county, commanding the constable to col lect the sum remaining unpaid, of the goods and chattels of the delinquent, within the county, and, for want thereof, to take him, and convey him to the jail of the county, there to remain until he pays that sum, not exceeding thirty days. Upon the delinquent being committed to jail, the keeper thereof must keep him in close custody therein, until he is entitled to a discharge, as specified in the execution. [Id., § 88.] collected; how ap § 2978. The money collected by virtue of the execution must be Money forthwith paid by the constable to the justice. The justice must, plied. within ten days after he receives a fine, or any part thereof, from the constable or the delinquent, pay the money to the officer, to whom the fines are directed to be paid, by section 2875 of this act, for the use of the poor. [Id., § 89, amended by inserting "forthwith"; by specifying the time of payment; extending the provision to money paid by the delinquent to the justice; and substituting the officers named for the overseers of the poor. See note to § 2875, ante. ] witness liable for § 2979. A person, subpoenaed as prescribed in this article, who Defaulting neglects or refuses to obey the subpoena, or to testify, is also liable to the party, in whose behalf he was subpoenaed, for all damages which the party sustains by reason of his neglect or refusal. [Id., 90, substituting the words, "obey the subpoena," for § 'appear," so as to include a refusal to produce papers, etc., as required by a subpoena duces tecum. See § 2969, ante.] ARTICLE THIRD. COMMISSION TO TAKE TESTIMONY. SEC. 2980. Commission to examine witness upon interrogatories. 2981. Id.; orally. 2982. When and how granted. damages. TITLE 4. Commis SEC. 2983. Adjournment. 2984. Execution and return of commission. 2985. Receipt thereof by justice. $ 2980. Where the defendant has neglected to appear upon the return of a summons, or has failed to answer the complaint, or where terrogato- an issue of fact has been joined in an action; and it appears, by sion to examine witness upon in ries. Id.; orally. When and how granted. affidavit, upon the application of either party, that a witness, not within the county where the action is pending, or an adjoining county, is material in the prosecution or defence of the action, the justice may award a commission to one or more competent persons, authorizing them, or either of them, to examine the witness under oath, upon interrogatories to be settled by the justice, or by the written agreement of the parties, and indorsed upon or annexed to the commission; to take and certify the deposition of the witness; and to return the same by mail, addressed to the justice. [L. 1838, ch. 243, § 2, and the amendment added to § 3 by L. 1847, ch. 329 (3 R. S., 5th ed., 456; 4 Edm., 640); amended by substituting the words, "by mail addressed to the justice," for "according to the directions given with such commission." It is well known that the courts are very strict and technical, with respect to the return of a commission; and it was held, in Smith v. Randall, 3 Hill, 495, that the rules upon this subject are the same in a justice's court, as in a court of record. The case itself presents an instance of the sacrifice of substance to form. The amendment sweeps away this fruitful source of embarrassment.] § 2981. If both parties expressly consent, a commission, granted as prescribed in this article, may issue without written interrogatories, and the deposition may be taken upon oral questions. In that case, section 900 of this act applies to the execution of the commission; and a copy of that section must be annexed thereto. Notice of the time or place of the examination of a witness, by virtue thereof, need not be given.(") [New. Prepared for the purpose of adapting to a justice's court, as far as it was deemed judicious and convenient, the provisions of this Code, allowing a commission to issue from a court of record to examine witnesses orally.] § 2982. The commission may be granted by the justice without notice, upon the application of the plaintiff, made at the return of 58 the summons, or upon the application of either party, made at the time of the joinder of issue. It may also be granted at any time after the joinder of issue, upon the application of either party, accompanied with proof, by affidavit, that six days' written notice of the application has been served upon the adverse party, either personally, or by service upon the attorney, who appeared for him before the justice. [L. 1838, ch. 243, § 3 (4 Edm., 640), as originally enacted; amended by allowing the commission to issue in certain cases without notice, so as to avoid the necessity of the plaintiff's procuring an adjournment, in order to enable him to give the necessary notice; and by prescribing the mode of serving the notice. See the next section.] ART. 3. ment. § 2983. Where a commission is granted upon the application of Adjourn the plaintiff, he is entitled to one or more adjournments of the trial, as may be necessary to procure the commission to be executed and returned; not exceeding the length of time for which the trial might be adjourned upon the application of the defendant. [L. 1841, ch. 138, § 1 (3 R. S., 5th ed., 456; 4 Edm., 545).] and return of commission. § 2984. The commission must be executed and returned, as pre- Execution scribed in section 901 of this act; and a copy of that section must be annexed thereto, except that subdivision sixth thereof may be omitted.(*) [This and the next two sections are substitutes for L. 1838, ch. 243, § 4 (4 Edm. 641), which applied, in general terms, to a commission issued by a justice of the peace, the provisions of law relating to the execution and return of a commission, issued out of a court of record.] thereof by § 2985. The justice, to whom the package containing the com- Receipt mission is transmitted by mail, must receive it from the post-office, Justice. 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. [Explained in the note to the last section.] position § 2986. Sections 902 and 903 of this act apply to a commission, When de issued as prescribed in this article; and to the execution thereof. A evidence. deposition taken thereunder may be read in evidence upon the trial 59 TITLE 5. Powers of commissioners. by either party, and has the effect specified in section 911 of this act.(*) [Sufficiently explained in the note to § 2984, ante, and by a reference to the sections made applicable.] § 2987. Where the commission is executed within the State, the commissioner, or, if there are two or more, a majority of them, have the same power to issue a subpoena, to swear a witness, and to compel his attendance, that a justice of the peace has, in an action pending before him. [L. 1841, ch. 138, § 2 (3 R. S., 5th ed., 456; 4 Edm., 546), amended by allowing a majority to thus act; and by adding the last six words.] Effect of failure of to appear. 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 venire. 2994. Ballots; how prepared. 2995. Drawing jury. 2996. Talesmen. 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. 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. Where the defendant makes default in appearing or defendant 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.(") (a) Sections 902 and 903 are on pp. 228, 329; section 911 on p. 229. (b) See L. 1881, ch. 414, "An act permitting the verification of pleadings in the justice's court", in appendix, p. 576, post. [2 R. S., 242, Part 3, ch. 2, tit. 4, § 92 (3 R. S., 5th ed., 440; 2 Edm., 259), amended by omitting the words, " or who shall have procured an adjournment, without having joined issue;" and by the substitution of the word, "duly ", for "personally," in order to make the section applicable to actions where a warrant of attachment, or a requisition to replevy, is issued, and the summons is served otherwise than personally. If the defendants are sued as joint debtors, and part only are served, the judgment must be taken against all under § 3020, post. See 2 N. Y., 110. If they are severally liable, and part only are served, judgment may be taken separately against those served.] TITLE 5. justice to fact. § 2989. Where an issue of fact has been joined, if neither party When demands a trial by jury, the justice must try the issue, hear the try issue of allegations and proofs of the parties, and render judgment as prescribed in the last section. [Id., § 91.] trial may manded. § 2990. After an issue of fact has been joined, and at any time When jury before the justice proceeds to an investigation of the merits of the de action, by swearing a witness, or receiving evidence, either party, or his attorney, may demand a trial by jury. [Id., § 93, amended by inserting the words, "of fact ;" and substituting "swearing" for "an examination of."] § 2991. Where a trial by jury is duly demanded, the justice Venire. must issue a venire, directed generally to any constable of the county wherein the action is to be tried, commanding him to notify twelve men of the town or city where the justice resides, qualified to serve, and not exempt from serving, as trial jurors in courts of record; not of kin to the plaintiff or defendant; and not interested in the action; to attend before the justice, at a time and place specified therein, to form a jury for the trial of the action. But if the parties agree upon a number of jurors, less than six, to try the action, the venire must direct the constable to notify twice the number so agreed upon. [Id., SS 94 and 95, consolidated, and amended by inserting, "or city". The qualifications, etc., of jurors in courts of record are prescribed in §§ 1027-1030, and 1032-1034 of this act.](*) action be § 2992. Where the action is between two towns or cities, or Id.; in between a town and a city, the venire must direct the constable to tween two 61 towns, etc. |