TITLE 5.

Delivery, execution,

of venire.

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, amended by adding the words, "or cities, or between a town and a city."]

§ 2993. The justice must deliver the venire, or cause it to be deand return livered, to a constable of the county, disinterested between the parties, who has not acted, or been employed to act, as the attorney or agent of either party, with respect to any claim or matter in controversy in the action, and to whom neither party offers any other reasonable objection. The constable shall not notify any person, whom he has reason to believe to be biased or prejudiced, in favor of or against either party; and he must, in all other respects, execute the venire fairly and impartially. He must notify the jurors personally, and indorse upon or annex to the venire, and deliver to the justice, a return under his hand, containing a list of the persons notified.

Ballots; how prepared.

Drawing jury.

[Id., §§ 97 and 98, and L. 1847, ch. 470, § 53 (3 R. S., 5th ed., 441; 4 Edm., 591), consolidated.]

§ 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 bailots must be deposited in a box, or other convenient receptacle.

[Id., § 99, remodelled, so as generally to conform the language to that employed in this Code, in describing the jury ballots used in courts of record; but without materially changing the meaning. It is very desirable, that a material difference in the mode of expression should not exist, to leave room for doubt, as to whether the same rules and principles govern the drawing of a jury in each case.]

§ 2995. The justice must then openly draw out, one after another, six of the ballots, or such smaller number thereof as the parties have agreed upon. 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 persons is obtained. Those persons constitute the jury to try the action.

[Id., § 100.]

TITLE 5.

§ 2996. If a sufficient number of competent jurors is not drawn, Talesmen. the justice may, in his discretion, either issue a new venire, or direct the constable to require the attendance of such a number of talesmen from the bystanders, or others, duly qualified, and against whom no cause of challenge appears, as the justice deems sufficient for the purpose.

[Id., § 101, amended verbally, and by substituting the words, "in his discretion, either issue a new venire, or direct" for "supply the deficiency by directing." The amendment expresses, it is believed, the true meaning of the provision, taken in connection with the next section, but there was room to construe the statute as meaning, that a second venire should not be issued, till after the failure of an attempt to procure a jury by summoning talesmen. If the latter was the meaning, the statute should have been changed before.]

venire.

§ 2997. If the constable, to whom the venire is delivered, does New not return it as required thereby; or if a full jury is not obtained in the manner prescribed in the foregoing sections of this title, the justice must issue a new venire.

[Id., § 102.]

oath.

§ 2998. The justice must administer an oath or affirmation to Juror's each juror, well and truly to try the matter in difference between defendant, and, unless discharged by the justice, a true verdict to give, according to the evidence.

[Id., § 103.]

plaintiff, and

hear

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

[Id., § 104.]

oath.

§ 3000. A person offered as a witness, must, before any testi- witness' mony is given by him, be duly sworn or affirmed, to the effect that the evidence which he shall give, reiating to the matter in difference

TITLES.

between

-, plaintiff, and

-, defendant, shall

Witness

refusing to be sworn, etc.

War

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

[Id., § 108.]

§ 3001. Where a witness, attending before a justice in an action, refuses to be sworn or affirmed in the form prescribed by law; or to

rant there answer a pertinent and proper question; or neglects or refuses to

upon.

Contents

of war

prison

ment of recusant witness.

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., § 279 (3 R. S., 5th ed., 461; 2 Edm., 282), amended by adding the second clause relating to the production of books, etc. It was held in Lane v. Cole, 12 Barb. 680; and Bonesteel v. Lynde, 8 How. Pr., 226, affirmed id., 352; that a failure to produce a document called for by a subpoena duces tecum, issued from a court of record, is a contempt of the court. Perhaps the rule was also applicable to a case in a justice's court; but the question was doubtful, and as it clearly appeared that the rule should be so applicable, the section was so framed as to remove all doubts upon the subject. For some important rulings under the provisions revised in this and the next section, which are equally applicable to the sections as they now stand, see Rutherford v. Holmes, 66 N. Y., 368. ]

§ 3002. The warrant must specify the cause for which it is isrant: im- sued. 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 ɔtherwise discharged according to law.

Adjournment thereupon.

[Id., § 280, amended by inserting the provisions as to books, etc., so as to conform this section to the last section, and by adding the last seven words. ]

§ 3003. The justice must thereupon, from time to time, at the request of the party in whose behalf the witness attended, adjourn

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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.

TITLE &

affidavit; when evidence.

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

[Id., § 105 (3 R. S., 5th ed., 442; 2 Edm., 260), amended by the insertion of the exception, so as to except affidavits not relating to the merits, and cases provided for by special statutes. L. 1835, ch. 159, L. 1858, ch. 244, and the like. See, §§ 922, 926, 927.](*)

tency of

how de

§ 3005. An objection to the competency of a witness must be Compe tried and determined by the justice. Where the ground of the witness; objection depends upon a matter of fact, evidence may be given termined. thereupon, as upon any other question 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. [Id., § 107.]

oath.

§ 3006. After hearing the allegations and proofs, the jury must Constable to keep be kept together in a private and convenient place, under the charge jury; his 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."

[Id., § 109, substantially unaltered.]

[9]

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TITLE 5. Rendition of verdict; plaintiff

need not be called.

Jury when to be discharged;

new

venire.

Fine to be imposed

ing juror.

§ 3007. When the jurors have agreed upon their verdict, they must publicly deliver it to the justice, who must enter it in his docketbook. 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, amended by substituting the last sentence, for the provision, requiring the plaintiff to be called and to be present, when the verdict is received. The amendment establishes the same rule in a justice's court, which governs in a court of record. The retention in a justice's court of the useless formality of calling the plaintiff, for so many years after it was abrogated in courts of record, was doubtless due to the fact, that in the former, it rested upon a statutory enactment, the repeal of which no one had any special interest in procuring.]

§ 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 fortyeight 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, amended by adding the words, "and their consent is entered in the justice's docket-book."]

§ 3009. A person duly notified to attend as a juror, who fails to on default- 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.

[Id., § 112, as remodelled by L. 1873, ch. 146 (9 Edm., 580); amended so as to correspond with § 2974, ante. A statement of the origin of the defect in the statute, which led to the enactment of the act of 1873, will be found in the note to the last-mentioned section. The proceedings regulated by the act of 1873 are, substantially, the same as those for which §§ 2975, etc., ante, provide these are taken into the foregoing section by the reference.]

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