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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[L. 1838, ch. 243, § 3 (4 Edm., 640), as originally enacted; amended by allowing the commission to issue in certain cases without notice, so as to avoid the necessity of the plaintiff's procuring an adjournment, in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.]
§ 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).]
$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 of co be annexed thereto, except that subdivision sixth thereof may be omitted.(*)
[This and the next two sections are proposed as substitutes for L. 1838, ch. 243, § 4 (4 Edm., 641), which applies, 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. ]
§ 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.
[Explamed in the note to the last section.]
§ 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
Powers of commissioners.
by either party, and has the effect specified in section 911 of this
[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
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,
2992. Id.; in action between two towns, etc.
2993. Delivery, execution, and return of venire.
2994. Ballots; how prepared.
2995. Drawing jury.
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.
[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.]
§ 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 issue of allegations and proofs of the parties, and render judgment as prescribed in the last section.
[Id., § 91.]
§ 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 manded. 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., § 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.](*)
§ 2992. Where the action is between two towns or cities, or 1a; in between a town and a city, the venire must direct the constable to tween two
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 de and 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.
[Id., § 97 and 93, 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.]
§ 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.]
§ 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.]
§ 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.]
§ 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.]
§ 3000. A person offered as a witness, must, before any testi- witness's 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