$1166. Persons drawn, etc., to form the jury. -The first twelve persons who appear, as their names are drawn and called, and are approved as indifferent be tween the parties, and not discharged or excused, must be sworn; and constitute the jury to try the issue.

2 R.S.120, 61. People v. Albany, etc., 6 Wend.584; People v. Larned 7 N. Y. 451.

1167. Ballots drawn, when to be deposited in a second box. - The ballots, containing the names of the jurors so sworn, must be then deposited in another box, and there kept, apart from the other ballots, until that jury is discharged.

Id., § 62.

$1168. Id.; when to be returned to the first box.After that jury is discharged, the ballots containing their names must be again rolled up or folded, as prescribed in section 1163 of this act, and returned to the box, from which they were first taken; and the same course must be pursued, as often as an issue is brought to trial by a jury.

Id., 163.

$1169. Ballots of absentees, etc., to be returned to first box. The ballot, containing the name of a juror, who is absent, when his name is drawn or called, or is set aside, or excused from serving on that trial, must be again rolled up or folded, in the same manner as before, and returned to the box, containing the undrawn ballots, as soon as the jury is sworn.

Id., 167. People v. Larned, 7 N. Y. 452.

§ 1170. New jury may be drawn while first is empanelled. If an issue is brought to trial by a jury. while a jury is empanelled in another cause, at the same term, and not then discharged, the court may order a jury, for the trial of that issue, to be drawn, out of the box containing the ballots then undrawn; but, in any other case, the ballots, containing the names of all the trial jurors, returned at, and attending the term, must be placed together in the same box, before a jury is drawn therefrom.

Id.. 164. People v. Ransom, 7 Wend. 423.

1171. [Amended, 1879.] When talesmen to be procured. If a sufficient number of jurors, duly drawn and notified, do not attend, or cannot be obtained

to form a trial jury, the court may, in any county except Westchester, direct the sheriff to require the attendance of such a number of talesmen, from the bystanders, or from the county at large, qualified to serve as trial jurors, as it deems sufficient for the purpose. In Westchester county, the court must direct the sheriff to draw a sufficient number of ballots from the first box, specified in section ten hundred and thirty-eight of this act, if there is not a sufficient number of ballots remaining therein, to draw the residue from the second box, specified in section ten hundred and fifty-one of this act. In any other county, except New-York and Kings, it may, in its discretion, instead of directing him to require talesmen to attend, direct him to draw a sufficient number of ballots from the third box, specified in section ten hundred and fifty-two of this act. In either case, the sheriff must notify the persons thus drawn to attend forthwith, or upon a day fixed by the court. If, for any reason, a sufficient number of jurors to try the issue is not obtained, from the persons notified, under an order made as prescribed in this section, the court may make another order, or successive orders, until a sufficient number is obtained; and in making each order, the court may exercise the same discretion, as in making the first order.

2 R.S.420, 54, am'd. Howe v. Brundage, 1 T. & C.429; Shields v. Niagara Bank, 3 Hun, 477; Kenny v. People, 31 N. Y. 330.

1172. When talesmen to be procured. In any county, except New-York, Kings, or Westchester, the court may also direct the sheriff to require the attendance of such a number of qualified talesmen, for the trial of an issue of fact, as it deems sufficient, where, by reason of one or more juries being empanelled, or for any other reason, no ballot remains undrawn; or where, in consequence of jurors being set aside, a juror cannot be obtained, for the trial of that issue, from the list of those returned.

Part of id., 65.

1173. If sheriff is a party, court may appoint a person to act for him. If, in a case specified in the last two sections, the sheriff is a party to the issue, the court must appoint a disinterested person, to act in place of the sheriff. For that purpose, the person so appointed possesses all the powers, and is subject to all the duties and liabilities of the sheriff, with respect to the matters specified in those sections.

1174. Duty of sheriff and of talesmen. — The sheriff, or person appointed by the court, must notify the requisite number of persons to attend, and make return thereof, as prescribed in section 1048 of this act ; except that each person must be required to attend forthwith. Each person so notified must attend forthwith, and, unless excused by the court or set aside, must serve as a juror upon the trial. For a neglect or refusal so to do, he may be fined, in the same manner as a trial juror, regularly drawn and notified, as prescribed in this chapter; and he is subject to the same exceptions and challenges, as any other trial juror.

2 R. 8.420, 55.

1175. [Amended, 1877.] Jury competent, although containing only part or none of original panel. It is not a valid objection to a jury, procured as prescribed in the last four sections, that it contains none of the jurors originally returned to the term, or is only partially composed of such jurors.

Remainder of Id., 65, extended.

$1176. Two peremptory challenges in a civil action. Upon the trial of an issue of fact, joined in a civil action, in a court of record, or not of record, each party may peremptorily challenge not more than two of the persons, drawn as jurors for the trial.

L. 1847, ch. 134,1 (4 Edm. 648). People v. Hamilton, 39 N. Y. 107; People v. Tweed, 13 Abb. N. S. 371.

1177. No challenge allowed because officer drawing is a party, etc. It is not a good cause of challenge, to the panel or array of trial jurors, in an action in a court of record, that the officer who drew them is a party to, or interested in the action, or counsel or attorney for, or related to, a party

2 R. S. 56 (2 Edm. 437). See contra, Wakeman v. Sprague, 7 Cow. 720.

§ 1178. No challenge allowed because officer notify. ing is a party, etc. It is not a good cause of challenge to the panel or array of trial jurors, in an action in a court of record, that they were notified to attend by an officer, who is a party to, or interested in, the action, or related to a party; unless it is alleged in the challenge, and is established, that one or more of the jurors drawn were not notified, and that the omission was intentional.

Id., 57. Contra, Woods v. Rowan, 5 Johns. 133.

§ 1179. Challenges in penal actions. — In a penal ac tion, in a court of record, or not of record, to recover a sum of money, it is not a good cause of challenge to a trial juror, or to an officer who notified the trial jurors, that the juror or the officer is liable to pay taxes, in a city, town, or county, which may be benefited by the

recovery.

2 R.S.420, 58 See also 2 R. S. 551, 2 (2 Edm. 571). See Wood v. Stoddard,2 Johns. 194; Diveny v. Elmira, 51 N. Y. 506.

$1180. [Amended, 1877.] Challenges how tried. Exceptions to and review of the determination of the court, in reference thereto. An objection to the qualifi cations of a juror is available only upon a challenge. A challenge of a juror, or a challenge to the panel or array of jurors, must be tried and determined by the court only. Either party may except to the determination, and it may be reviewed, upon a question of fact, or a question of law, or both, as where an issue of fact presented by the pleadings is tried by the court; except that where one or more exceptions are taken, to the rulings of the court, made after the jury is empanelled. an exception to the determination of a challenge must be heard at the same time; and the case must contain the matters necessary to present it, upon the facts, or the law, or both.

L. 1873, ch. 427, 1 (9 Edin. 609), am'd. See Weston v. People, 6 Hun, 140; Stokes v. People, 53 N. Y. 164.

ARTICLE SECOND.

THE VERDICT.

SEC. 1181. Discharge of jury failing to agree.

1152. Plaintiff cannot submit to nonsuit after jury retires.
1183. In an action to recover money, Jury to assess damages.

1184. How double, treble, or increased damages, found and awarded.
1185. When verdict to be taken, subject to the opinion of the court.
1186. General and special verdict defined.

1187. General or special verdict, when rendered; special finding with general verdict.

1188. Special finding controls general verdict.

1189. Entry of verdict; subsequent proceedings.

§ 1181. Discharge of jury failing to agree. Where a jury is empanelled to try an issue, to make an inquiry, or to assess damages, in an action in a court of record, or not of record, or in a special proceeding before an officer, if the jurors cannot agree, after being kept together, for such a time as is deemed reasonable, by the court before

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which, or the officer before whom, they were empanelled, the court or officer may discharge them, and issue a precept for a new jury, or order another jury to be drawn, as the case requires; and the same proceedings must be had before the new jury, as if it was the jury first empanelled.

2 R. S. 554, 26 (2 Edm. 575).

1182. Plaintiff cannot submit to nonsuit after jury retires. It is not necessary, in an action in a court of record, to call the plaintiff, when the jurors are about to deliver their verdict; and the plaintiff, in such an action, cannot submit to a nonsuit, after the cause has been committed to the jury, to consider the verdict. Taken from Rule 38, and made general in its application.

§ 1183. In action to recover money, jury to assess damages. In an action to recover a sum of money only, if a verdict is found, either in favor of the plaintiff, or in favor of a defendant, who has set up a counterclaim for a sum of money, the jury must assess the amount of damages. The jury may also, under the direction of the court, assess the amount of the damages, where the court directs judgment for the plaintiff, on the pleadings.

Co Proc., part of 2263. The remainder of that section is covered by 22503 and 504, ante.

1184. How double, treble, or increased damages, found and awarded. Where double, treble, or other increased damages are given by statute, single damages only are to be found by the jury; except in a case where the statute prescribes a different rule. The sum so found must be increased by the court, and judgment rendered accordingly.

New in form. Embodies the rule in Newcomb v. Butterfield, 8 Johns. 648; and in King e. Havens, 25 Wend. 420.

1185. [Amended, 1879.] When verdict to be taken, subject to the opinion of the court. — Where, upon the trial of an issue by a jury, the case presents only questions of law, the judge may direct the jury to render a verdict, subject to the opinion of the court. Notwithstanding that such a verdict has been rendered, the judge holding the trial term may, at the same term, set aside the verdict, and direct judgment to be entered for either party, with like effect and like manner, as if such a direction had been given at the trial. An exception to such a direction may be taken as prescribed in section nine hundred and ninety-four of this act.

Co. Proc., part of 265, am'd. Malloy . Wood, 3 Abb. 369; s. c.. 6 Imer, 657: Porter r. Schepeler, 2 Bosw188: Cobb . Cornish, 16 N. Y. 42; 6 Abb. 129: Gilbert v. Beach, 16 N. Y. 605; Chambers . Grantzon, 7 Bosw. 414; Brown e. Orser. 2 id. 365; Bell r. Shibley, 33 Barb. 610; Beebe r. Ayres, 28 14. 283; Whittaker e. Merrill, id. 526; Havemeyer v.