must, at least three days before the day therein stated, notify each of the persons whose names have been therein inserted, by reading it or stating the substance thereof to the person so served. But the service shall not be affected by the constable's failure, after diligent search, to find any of the persons so named. The constable must make his return upon the venire, certifying that he has so personally served it upon each of the jurors whose names are therein inserted, or if any were not served, stating the reason for such omission. Any constable making a false return upon such venire is guilty of a misdemeanor. Any person so served and not attending at the time and place to which the cause was so adjourned, is guilty of a contempt of court, punishable by a fine not exceeding ten dollars, which the justice may impose forthwith by an entry in his minutes of the imposition of such fine, to be collected by execution issued by the justice as upon a judgment, with costs of the levy, and which fine shall be paid over to the use of the poor of the county by the justice, but upon the presentation of a reasonable and sufficient excuse by or on behalf of the person so fined, the justice may, at any time, remit such fine, or any part thereof.

I. 22 97, 98; L. 1847, ch. 470, 2 3 (4 Edm. 591). Rice v. Buchanan. 41 Barb. 147; Mayor v. Mason, 1 Abb. 344; 4 E. D. Smith, 142; Watkins v. Weaver, 10 Johns. 107: Miles v. Pulver, 3 Den. 84; Coon v. Snyder, 19 Johns. 384; Becker v. Sitterly, 58 How. 38.

2994. Ballots; how prepared. 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 ballots must be deposited in a box, or other convenient receptacle. Id., § 99.

2995. Drawing jurors.. The justice must then openly draw out, one after another, six of the ballots. 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 jurors is obtained. The parties may elect to try the cause by a less number than six jurors, at any time before a witness is sworn. The persons so selected as herein provided, constitute the jury to try the action.

Id., 10. McNall v. McClure, 1 Lans. 32; Bullard v. Spoor, 2 Cow, 430; Eggleston v. Smiley, 17 Johns. 133; Clark v. Van Vranken, 20 Barb. 278; Becker v. Sitterly, 58 How. 38; Brisbane v. Macomber, 56 Barb. 753.

$2996. Jurors in default.-If a sufficient number of competent jurors do not attend, the justice shall issue an attachment against all defaulting jurors, and shall place the same in the hands of the officer who summoned the same, command ing him forthwith to attach such jurors and to bring them before him at a time specified not more than thirty-six hours thereafter, to which the cause must be adjourned. The juror or jurors So attached shall, in addition to the fine specified in section 2395 of this act, be required to pay the expense of the attachment and service thereof: which shall be the officer's fees, together with all necessary expense incurred by him in serving said attachment, to be audited and fixed, to be enforced in the same manner, and when collected to be paid to the officer

or the party who has paid the same. Any person so attached and disobeying or resisting the service of said attachment is guilty of a misdemeanor.

Id., 101. Cross v. Moulton, 15 Johns. 469; Day v. Wilber, 2 Cai. 134. $2997. New venire, etc.-If the constable, to whom the venire is delivered, does not return it as required thereby; or if a full jury, drawn as prescribed in the foregoing sections of this title, cannot be obtained, the justice must, in case the venire is not returned, proceed to draw another jury, and in case a full jury is not obtained he must proceed to then double he number of jurors required to complete the jury, in the manner prescribed in the foregoing sections, which shall be summoned in like manner as the first jury, and he must continue to do so till a jury is obtained.

Id., 102. Blanchard v. Richly, 7 Johns. 198; Sebring v. Wheedon, 8 id. 460. $2998. Juror's oath.— The justice must administer an oath or affirmation to each juror, well and truly to try the matter in difference between plaintiff, and defendant, and, unless discharged by the justice, a true verdict to give, according to the evidence. Id., § 103.

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

Id., § 104. Delancey v. Nagle, 16 Barb. 96; Trustees of Penn Yan v. Thorne, 6 Hill, 326; Chapman v. Fuller, 7 Barb. 70; Stroud v. Butler, 18 id. 327; Pettit v. Ide, 12 Abb. 44.

§ 3000. Witness's oath.- A person offered as a witness, must, before any testimony is given by him, be duly sworn or affirmed, to the effect that the evidence which he shall give, relating to the matter in difference between plaintiff, and defendant, shall be the truth, the whole truth, and nothing but the truth. Id., § 108.

War

§ 3001. Witness refusing to be sworn, etc. rant thereupon.- Where a witness, attending before a justice in an action, refuses to be sworn or affirmed in the form prescribed by law; or to answer a pertinent and proper question; or neglects or refuses to 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, amended. Lane v. Cole, 12 Barb. 680; Bonesteel v. Lynde, 8 How. 226; Rutherford v. Holmes, 66 N. Y. 368.

3002. Contents of warrant; imprisonment of recusant witness. The warrant must specify the cause for which it is issued. 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 otherwise discharged according to law.

Id., 280.

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

Id., 281.

An

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

Id., 105. Wesson v. Chamberlain, 3 N. Y. 331.

3005. Competency of witness; how determined. An objection to the competency of a witness must be tried and determined by the justice. Where the ground of the objection depends upon a matter of fact, evidence may be given 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. Wiggins v. Wallace, 19 Barb. 338.

3006. Constable to keep jury; his oath. After hearing the allegations and proofs, the jury must be kept together in a private and convenient place, under the charge 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 ren der their verdict, communicate to any person the state of their deliberations, or the verdict they have agreed upon."

Id., 109. Kellogg v. Wilder, 15 Johns. 455; Rose v. Smith, 4 Cow. 17; Dennison v. Collins, 1 id. 111; Durfee v. Eveland, 8 Barb. 46: Baker v. Simmons, 29 id. 198: Rogers v. Moulthrop, 13 Wend. 274; Hancock v. Salmon, 8 Barb. 564; Moody v. Pomeroy, 4 Den. 115; Whitney v. Crim, 1 Hill, 61 Henlow v. Leonard, 7 Johns. 200; Thayer v. Van Vleet, 5 id. III; Benson v. Clark, 1 Cow. 258; Neil v. Abel, 24 Wend. 185; Taylor v. Betsford, 13 Johns. 487; Keeler v. Lockwood, Hill and Denio's Supp. 137; Talman v. Woodworth, 2 Johns. 384; Tower v. Hewett, 11 id. 134; Staly. Barhite, 2 Cai. 221; Douglas v. Blackman, 14 Barb. 381; Day v. Webber, 2 Cai. 134.

§ 3007. Rendition of verdict; plaintiff need not be called. When the jurors have agreed upon their verdict, they must publicly deliver it to the justice, who must enter it in his docket-book. 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. Bander v. Lashe, 5 Lans. 335; Rathbone v. Stanton, 6 Barb. 141; Fisk v. Skut, 21 id. 333; Rogers v. Ackerman, 22 id. 134; Dunckle v. Kocker, 11 id. 387; McDonald v. Edgerton, 5 id. 560; Allen v. Godfrey. 44 N. Y. 433; Houghtaling v. Osborn, 15 Johns. 119; Wylie v. Hyde, 13 id. 249: Feiter v. Mulliner, 2 id. 151; Goodenow v. Travis, 3id. 428; Page v. Cady, 1 Cow. 115; Brown v. Smith, 3 Cai.81; Blake v. Milspaugh, 1 Johns. 316; Blackly v. Sheldon, 7 id. 32; Young v. Overacker, id, 191; Hess v. Beekman, II id. 457; Burger v. Kortright, 4 id. 414; Haight v. Bagley, 15 Barb. 499: Putnam v. Shelop, 12 Johns. 435.

§ 3008. Jury when to be discharged; new venire. 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 forty-eight 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. Fiero v. Reynolds, 20 Barb, 275..

§ 3009. Fine to be imposed on defaulting juror. A person duly notified to attend as a juror, who fails to attend, or, attending, refuses to serve, without a reason. able excuse, proved by his oath, or the oath of another person, is liable to the same fine, to be imposed and col

lected, 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 sub. pœnaed as a witness, and not attending, or attending and refusing to testify.

Id., 112, amended; L. 1873, ch. 146 (9 Edm. 580)

TITLE VI.

Judgment; and docketing the same.

SEC. 3010. Judgment by confession.

3011. Id.; mode of confessing judgment.

3012. Id.; when void.

3013. Judgment of nonsuit.

3014. Judgment upon verdict, etc.

3015. When judgment to be rendered.

3016. Remitting part of verdict, etc.

3017. Transcript of judgment; docketing the same.

3018. Id.; when execution may issue against person.

3019. Id.; in action for a chattel.

3020. Judgment against joint debtors.

3021. Docketing the same; action thereupon.

3022. Docketing judgment in another county.

3023. Justice may give transcript, after expiration of his term.

3010. Judgment by confession. A justice of the peace may enter a judgment upon the confession of the defendant, in any case, where the amount confessed does not exceed the sum of five hundred dollars, with such a stay of execution, if any, as is agreed upon by the parties to the judgment. See post, § 3224.

Id., 113.

3011. Id.; mode of confessing judgment. A judg ment upon confession shall not be rendered unless the following requisites are complied with:

1. The defendant must personally appear before the justice.

2. The confession must be in writing, signed by the defendant, and filed with the justice.

3. If the judgment is confessed for a sum exceeding fifty dollars, the confession must be accompanied with the affidavit of the defendant and of the plaintiff, stating that the defendant is honestly and justly indebted to the plaintiff in the sum specified therein, over and