upon demand, pay to the plaintiff the sum due upon the judgment. L. 1831, ch. 300, 40 (4 Edm. 474). Stewart v. McGuin, 1 Cow. 99; see, also, Fondey v. Cuyler, 1 Wend. 464. 2963. Undertaking to procure discharge of defendant from custody.-Where the defendant has been arrested, the trial must be adjourned upon his applica tion, upon the same terms, and in the same manner, as where he has not been arrested; except that the undertaking prescribed in the last section need not be given. A defendant, who procures such an adjournment, must continue, during the time of adjournment, in the custody of the constable: unless he gives an undertaking to the plaintiff, with one or more sureties, approved by the justice, to the effect that, if the plaintiff recovers judgment in the action; and if an execution is issued thereupon against the person of the defendant, within ten days after the plaintiff is entitled to the same; and if a return is made thereto, on or after the return day thereof, that the defendant cannot be found; the sureties will pay to the plaintiff the amount due upon the judgment. If such an undertaking is given, the defendant must be discharged from custody. 2 R. S. 239, 240, part of 71, 77 and 76 (2 Edm. 255). Pope v. Hart, S Barb. 630. $ 2964. When defendant to be discharged.—If the trial of an action, in which the defendant has been arrested, is adjourned with the consent of both parties, or upon the application of the plaintiff, the defendant must be discharged from custody. Id., 72. § 2965. Subsequent adjournments. The justice must, upon the application of the defendant, grant a second or subsequent adjournment of the trial of the action, upon the defendant's giving security, if required, as prescribed in the foregoing provisions of this article, where he applies for a first adjournment; and upon his proving, by his own oath or otherwise, to the satisfaction of the justice, that he cannot safely proceed to trial for want of some material testimony or witness; and that he has used due diligence to obtain the testimony or witness. But if the defendant has given an undertaking upon a former adjournment, a new under taking need not be given, unless it is required by the justice, or by the sureties in the former undertaking. Id.. 75. Edwards v. Drew, 2 E. D. S. 55; Shear v. Willis, 5 Lans. 329; Onderdonk v. Ranlett, 3 Hill, 323; Weed v. Lee, 50 Barb. 354; Powers v. Lockwood, 9 Johns, 133; St. John r. Benedict, 12 id. 418; Farrington v. Payne, 15 id. 432; Sears v. Grundy, 1 id. 514; Easton v. Coe, 2 id. 383; Sebring v. Wheedon, 8 id. 458; Beekman r. Wright, 11 id. 442; Annin v. Chase, 13 id. 462; Cross v. Moulton, 15 id. 469; Christian v. Paul, 16 How. 17; Day r. Davidson, 8 Week. Dig. 96; Brill v. Lord, 14 Johns. 341; Rose v. Stuyvesant, 8 id. 426; Ranney v. Gwinne, 3 E. D. S. 79; Weeks v. Lyon, 18 Barb. 530; Richardson r. Brown, 1 Cow. 255; Deland . Richardson, 4 Den. 95; Lynsky v. Pendergrast, 2 E. D. Smith, 43; Aberhall v. Roach, 11 How, 95; Green v. Angell, 13 Johns. 469; Day v. Wilber, 2 Cai. 134; Wight e McClave, 3 E. D. Smith, 316; Story v. Bishop, 4 id. 423; Redfield r. Florence, 2 id. 339; Fairbanks v. Corlies, 1 Abb. 152; Fink v. Hall, 8 Johns. 437; Parmalee v. Thompson, 7 Hill, 77. § 2966. Justice may impose conditions upon adjournment. Upon granting the defendant's application for an adjournment, where the trial has been once adjourned, or where the plaintiff is a non-resident of the county, the justice may, in his discretion, upon the plaintiff's application, direct that any witness on the part of the plaintiff, who is in attendance, be then examined under oath before the justice. Thereupon the testimony of the witness must be reduced to writing, certified by the justice, and retained by him; to be read upon the trial, with the same effect, and subject to the same objections, as if it was then given orally by the witness. Id., 70. § 2967. Adjournment when warrant to attach absent witness is issued.-Where, upon a trial, a warrant of attachment is issued to compel the attendance of a witness, who has failed to appear in obedience to a subpoena, the justice may, in his discretion, adjourn the trial, for such a time as he deems necessary for the return of the warrant, not exceding five days. New. See Board of Excise v. Sackrider, 35 N. Y. 154. 2968. Adjournment not to exceed ninety days.The trial of an action shall not be adjourned to a time beyond ninety days from the joinder of issue, without the consent of both parties, except in one of the following cases: 1. Where a venire has been duly issued, but a jury has not been procured, so that it is necessary to issue a new venire, or to summon one or more talesmen, the trial may be adjourned, not more than two days beyond the ninety days, in order to enable the jury to be procured. 2. Where a jury has not been able to agree upon a verdict, and is discharged, the trial may be adjourned a sufficient time beyond the ninety days, to enable a new jury to be procured, as prescribed in title fifth of this chapter. 3. Where a warrant of attachment has been issued to compel the attendance of a witness, as prescribed in the last section, or a warrant has been issued to commit a recusant witness, as prescribed in title fifth of this chapter, an adjournment made thereupon, as prescribed by law, is not deemed a part of the ninety days. New in substance. See id., 78. ARTICLE SECOND. COMPELLING THE ATTENDANCE OF A WITNESS. SEC. 2969. When justice may issue subpœna. 2970. Subpoena; how served. 2971. Warrant of attachment against defaulting witness. 2972. Id.; how executed; fees thereupon. 2973. Id.; when witness is in adjoining county. 2974. Fine for refusing to attend, or to testify. 2975. Id.; how imposed. 2976. Minute of conviction. 2977. Execution thereupon. 2978. Money collected; how applied. 2979. Defaulting witness liable for damages. 2969. When justice may issue subpœna.— A justice of the peace may issue a subpoena, to compel a witness to attend, in the county where the justice resides, or in an adjoining county, but not otherwise, for the purpose of testifying upon the trial of an action, pending before himself, or before another justice. The subpoena may require the witness, except as otherwise expressly prescribed by law, to bring with him any book or paper, relating to the merits of the action. But a justice shall not issue a subpœna to compel the attendance of a witness before another justice, unless the person applying there for proves, by his own oath, or the oath of another person, that an action is actually pending before the other justice. Id., 22 80 and 81. 2970. Subpoena; how served. A subpoena may be served by a constable, or by any other person. It must be served by reading it, or stating its contents, to the witness, and by paying and tendering to him his lawful fee for one day's attendance as a witness. Where it is served by a constable, his return thereto, stating the manner of service and the sum paid, is presumptive evidence of the facts therein stated. Id., 82. § 2971. Warrant of attachment against defaulting witness. Where it is made to appear, to the satisfaction of the justice, by affidavit or other proof, that a person, duly subpoenaed to attend before him in an action, has refused or neglected to attend as a witness in obedience to the subpoena; and no just cause for the neglect or refusal is shown to exist; and the party, in whose behalf the witness was subpoenaed, or his attorney, makes oath that the testimony of the witness is material; the justice must issue a warrant of attachment, directed generally to any constable of the county, for the purpose of compelling the attendance of the witness. Id., 183, amended; L. 1834, ch. 235. Baker. Williams, 12 Barb. 527; Rutherford v. Holmes, 66 N. Y. 368. 2972. Id.; how executed; fees thereupon.- Such a warrant of attachment must be executed in the same manner as an order of arrest. The fees of the justice and constable for issuing and serving it, must be paid by the person against whom it is issued, unless he shows a reasonable excuse, to the satisfaction of the justice, for his omission to attend; in which case, the party procuring the warrant must pay them, and, if he recovers costs, the amount thereof must be allowed to him as part of his costs. Id., 84. 2973. Id.; when witness is in adjoining county.Where the delinquent witness is within an adjoining county, the constable, to whom the warrant of attachment is directed, may arrest the witness in that county, and bring him before the justice. The constable, while he is within the adjoining county for that purpose, has all the powers of a constable of that county, with respect to the warrant so issued to him. New. § 2974. Fine for refusing to attend, or to testify.— A person, duly subpoenaed as a witness, who, without a reasonable excuse, proved by his oath or the oath of another person, fails to attend; or, attending, refuses to testify; must be fined, by the justice before whom the action is pending, for each non-attendance or refusal, such a sum, not less than one dollar nor more than ten dollars, as the justice thinks it reasonable to impose upon him, as a fine therefor. R. S., 85, amended. People v. Webster, 14 How. 242; 3 Park. 503; Robbins v. Gorham, 26 Barb. 586; 25 N. Y. 588. § 2975. Id.; how imposed - The fine may be summarily imposed by the justice, upon the application of the party in whose behalf the witness was subpoenaed, at any time during the trial, when the defaulting witness is present, and has an opportunity to be heard. If it is not imposed during the trial, the justice, at any time within five days after judgment is rendered, must, upon the application of the party, issue a warrant, directed generally to any constable of the county, commanding him to arrest the defaulting wit ness, and to bring him before the justice, at a time and place therein specified, the time to be not more than twelve days after issuing the warrant, to show cause why a fine should not be imposed upon him. Id., 86. Robbins v. Gorham, 25 N. Y. 588. § 2976. Minute of conviction.-The justice imposing the fine must enter in his docket-book a minute of the conviction, of the cause thereof, of the amount of the fine, and of the costs. The minute is deemed a judgment against the delinquent, in favor of the officer to whom fines are directed to be paid, by section 2875 of this act. Id., 87, amended. $2977. Execution thereupon.-If the whole amount of the fine and costs is not forthwith paid to the justice, he must issue an execution, directed generally to any constable of the county, commanding the constable to collect the sum remaining unpaid, of the goods and |