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chattels of the delinquent, within the county, and, for want thereof, to take him, and convey him to the jail of the county, there to remain until he pays that sum, not exceeding thirty days. Upon the delinquent being committed to jail, the keeper thereof must keep him in close custody therein, until he is entitled to a discharge, as specified in the execution.

Id., 88.

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2978. Money collected; how applied. money collected by virtue of the execution must be forthwith paid by the constable to the justice. justice must, within ten days after he receives a fine, or any part thereof, from the constable or the delinquent, pay the money to the officer, to whom the fines are directed to be paid, by section 2875 of this act, for the use of the poor.

Id., 289.

2979. Defaulting witness liable for damages.- A person, subpoenaed as prescribed in this article, who neglects or refuses to obey the subpœna, or to testify, is also liable to the party, in whose behalf he was subpoenaed, for all damages which the party sustains by reason of his neglect or refusal.

Id., 90, amended.

ARTICLE THIRD.*

COMMISSION TO TAKE TESTIMONY.

SEC. 2980. Commission to examine witness upon interrogatories. 2981. Id.; orally.

2982. When and how granted.

2983. Adjournment.

2984. Execution and return of commission.

2985. Receipt thereof by justice.

2986. When deposition evidence.
2987. Powers of commissioners.

2980. Commission to examine witness upon interrogatories. Where the defendant has neglected to appear upon the return of a summons, or has failed to answer the complaint, or where an issue of fact has been joined in an action; and it appears, by affidavit, upon the application of either party, that a witness, not within the county where the action is pending, or an adjoining county, is material in the prosecution or

*This article is made applicable to District Courts in New York city, by Consolidation Act of 1882 (ch. 410), 2 1368.

defence of the action, the justice may award a commission to one or more competent persons, authorizing them, or either of them, to examine the witness under oath, upon interrogatories to be settled by the justice, or by the written agreement of the parties, and indorsed upon or annexed to the commission; to take and certify the deposition of the witness; and to return the same by mail, addressed to the justice.

L. 1838, ch. 243, 2, amended: L. 1847, ch. 329 (4 Edm. 640). Allen v. Edwards, 3 Hill, 499; Eaton v. North, 7 Barb. 631.

2981. Id.; orally. If both parties expressly consent, a commission, granted as prescribed in this article, may issue without written interrogatories, and the deposition may be taken upon oral questions. In that case, section 900 of this act applies to the execution of the commission; and a copy of that section must be annexed thereto. Notice of the time or place of the examination of a witness, by virtue thereof, need not be given.

New.

$2982. When and how granted.— The commission may be granted by the justice without notice, upon the application of the plaintiff, made at the return of 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, 8 3.

§ 2983. Adjournment. Where a commission is granted upon the application of 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. 1831, ch. 138, 1 (4 Edm. 548).

$2984. Execution and return of commission.-The commission must be executed and returned, as pre

scribed in section 901 of this act; and a copy of that section must be annexed thereto, except that subdivision sixth thereof may be omitted.

Substituted for L. 1838, ch. 243, 4 (4 Edm. 641).

$2985. Receipt thereof by justice. The justice, to whom the package containing the commission is transmitted by mail, must receive it from the post-office, 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.

See note to last section.

Sections 902

2986. When deposition evidence. and 903 of this act apply to a commission, issued as prescribed in this article; and to the execution thereof. A deposition taken thereunder may be read in evidence upon the trial by either party, and has the effect specified in section 911 of this act.

Same as last section.

Where the

§ 2987. Powers of commissioners. 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 (4 Edm. 546).

TITLE V.

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.

2991. Venire.

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2999. Jury to hear proofs.

3000. Witness's oath.

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3001. Witness refusing to be sworn, etc. Warrant thereupon

SEC. 3002. Contents of warrant: imprisonment of recusant witness. 3003. Adjournment thereupon.

3004. Ex parte affi-lavit; 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. Effect of failure of defendant to appear.— Where the defendant makes default in appearing or 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, 92 (2 Elm. 259). Clark v. Van Vranken, 20 Barb.278; Howard v. Brown, 2 E. D. Smith, 247; Ely . O'Leary, id. 355; Perkins v. Stebbins, 29 Barb. 523; Armstrong v. Smith, 44 id. 123; Humphrey v. Persons, 23 id. 313; Hodges e. Hunt, 22 id, 150; Gregory v. Trainer, 1 Abb. 209; 4 E. D. Smith, 58; Stilwell e. Staples, 3 Abb. 365; 5 Duer, 591; Sweet v. Coon, 15 Johns. 86; Alwood v. Austin, 16 id. 180; Snell v. Loucks, 11 id. 69; Lowther v. Crummie, 8 Cow. 87; Sammis v. Brice, 4 Denio, 576; People ex rel. Lynde, 8 Cow. 133; Alburtis v. McCready, 2 E. D. Smith, 39; Appleby v. Strang, 1 Abb. 143; Beach v. McCann, 4 id. 18; 1 Hilt. 256.

$2989. When justice to try issue of fact. Where an issue of fact has been joined, if neither party demands a trial by jury, the justice must try the issue, hear the allegations and proofs of the parties, and render judgment as prescribed in the last section.

Id., 891. Wheeler v. Lampman, 14 Johns. 480; Peck v. Richmond, 2 E. D. S. 380; Seymour . Bradfield, 35 Barb. 49; Blanchard v. Richley, 7 Johns. 198; Hathaway . Elmer, 25 Barb. 29; Gates v. Ward, 17 id. 421; Wheeler v. N. Y. & H. R. R. Co., 24 d. 414; Shall v. Lathrop, 3 Hill, 237; Olney v. Bacon, 1 Johns. 142; Burch r. Westfall, 5 N. Y. Leg. Obs. 178; Dunckle v. Kocker, 11 Barb. 387; Breidert v. Vincent, 1 E. D. Smith, 512: Buck v. Waterbury, 13 Barb. 116; Tattersall v. Hass, 1 Hilt. 56: Boomer v. Laine, 10 Wend. 525; Young v. Rummell, 2 Hill, 478; Evans v. Williams, 60 Barb. 346; Hall v. Olney, 65 id. 27; Roe v. Hanson, 5 Lans. 304; Clements . Benjamin, 12 Johns. 299; Reed v. Barber, 3 C. R. 160; Hyland v. Sherman, 2 E. D. S. 234; Carland v. Day, 4 id. 251; Smith v. Compton, 20 Barb. 262; Young Hubbell, 3 Johns. 430; Elwell v. McQueen, 10 Wend. 519; Peters v. Diossy, 3 E. D. S. 115; Harden 2. Woodside, id. 37; Harpeli v. Curtis, i id. 78; Pickert v. Dexter, 12 Wend. 150; Moore v. Noble, 36 How, 385; 53 Barb. 425; Burlingham v. Dever, 2 Johns. 189; Rosekrans . Van Antwerp, 4 id. 228; Perry v. Weyman, 1 id. 520; Lawrence v. Houghton, 5 id. 129; Cobb v. Curtis, 8 id. 470; Ely v. O'Leary, 2 E. D. Smith, 355; Fox v. Decker, 3 id. 150; Hunter v. Allen, 35 Barb. 42; Tift v. Culver, 3 Hill, 180; Beekman v. Wright, 11 Jobus. 441.

2990. When jury trial may be demanded.-At the time when an issue of fact is joined either party may demand a trial by jury, and unless so demanded at the joining of issue a jury trial is waived. And (for the purpose of obtaining such a jury) the town clerk of every town in this State shall, within

ten days after this act shall take effect, deliver to each of the justices of the peace in his town a certified copy of the list filed with him, in pursuance of section one thousand and thirtyseven of this Code, and he shall also deliver to each of said justices a certified copy of any such list hereafter filed with him, within ten days after the same shall be so filed. The town clerk is entitled to a fee of one dollar for each copy of said list so delivered. Any town clerk who shall neglect to deliver a copy of the list to each of the justices of the town within the time above prescribed, shall forfeit ten dollars for each failure, to be sued for and recovered by the overseers of the poor of said town for the use of the poor of said town.

Id., 2 93, amended. Kilpatrick v. Carr, 3 Abb. 117; Hosford v. Carter, 10 id. 452; Babcock v. Hill, 35 Barb. 52.

§ 2991. Venire.-- When a trial by jury is duly demanded, the justice must forthwith openly draw twelve ballots from a box or other receptacle containing the names of the persons who are returned as jurors of the town to the courts of record of the county upon the last list thereof received by him from the town clerk as jurors to attend and try said cause, on a day to which the cause shall then be adjourned by him, not more than eight days from the joining of issue, unless the parties consent to a longer adjournment, which consent shall be entered in the justice's minutes. The ballots shall be of the same description as those prescribed in section two thousand nine hundred and ninety-four of this act, but they may be, or may previously have been prepared by a justice. If a person whose name is thus drawn, in the judgment of the justice, resides more than three miles from the place of trial the justice may set aside such juror, and he may excuse any juror who comes within the provisions of section one thousand and thirtythree of this Code, and in either case draw another ballot, and continue to do so until twelve are drawn. After the adjourn ment of the court, at which a jury trial has been had, the justice must deposit the ballot containing the names of those who attended and served, in another box kept by him. The ballots containing the names of those who did not appear and serve must be returned by the justice to the box from which they were taken. If at the time of drawing jurors for the court there is not a sufficient number of ballots remaining in the original box, the justice, upon drawing all the ballots therein, must draw the necessary number from the second box containing the names of those jurors who have before served, as in this section prescribed, and must continue to draw from that box until a new list of jurors is delivered to him by said town clerk. Poyer v. N. Y. C. & H. R. R. R. Co., 7 Abb. N. C. 371; Knight v. Campbell, 62 Barb. 15; Ogden v. Parks, 16 Johns, 180; Fenwick v. Parker, 3 C. B. 254; Hathaway e. Hilmer, 25 Barb. 29; Borst v. Bleecker, 6 Jolus. 332.

2992. Id., in action between two towns, etc.— Where the action is between two towns or cities, or between a town and a city, the venire must direct the constable to 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. 2993. Delivery, execution and return of venire.The justice must insert the names of the jurors so drawn, in a venire, and deliver or cause it to be delivered to a constable of the county disinterested between the parties. The constable

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