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.

§ 2978. Money collected; how applied. The money collected by virtue of the execution must be forthwith paid by the constable to the justice. The 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., 189.

2979. Defaulting witness liable for damages.- A person, subpoenaed as prescribed in this article, who neglects or refuses to obey the subpoena, or to testify, is also liable to the party, in whose behalf he was subpœnaed, 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,

§ 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

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, 3.

Where a commission

is

§ 2983. Adjournment. 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.

Szc. 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.

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

SEC. 3002. Contents of warrant; imprisonment of recusant witness.

3003. Adjournment 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. 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, 3 92 (2 Edm. 259). Clark v. Van Vranken, 20 Barb.278; Howard v. Brown, 2 E. D. Smith, 247; Ely v. O'Leary, id. 355; Perkins t. Stebbins, 29 Barb. 523; Armstrong v. Smith, 44 id. 123; Humphrey . Persons, 23 id. 313; Hodges v. Hunt, 22 id. 150; Gregory t. Trainer, I Abb. 209: 4 E. D. Smith, 58; Stilwell e. Staples, 3 Abb. 365; 3 Duer, 691 Sweet . Coon, 15 Johns. 86; Alwood r. Austin, 16 id. 180; Snell v. Loucks, 11 id. 69; Lowther v. Crummie, 8 Cow. 87; Sammis e. Brice, 4 Denio, 576; People ex rel. Lynde, 8 Cow. 133; Alburtis . 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., 91. Wheeler v. Lampman, 14 Johns. 480; Peck v. Richmond, 2 E. D. S. 380; Seymour v. Bradfield, 35 Barb. 49; Blanchard r. Richley, 7 Johns. 198; Hathaway v. Elmer, 25 Barb. 29; Gates v. Ward, 17 iù. 424: Wheeler v. N. Y. & H. R. R. Co., 24 d. 414; Shall r. Lathrop, 3 Hill, 237; Oluey v. Bacon, 1 Johns. 142; Burch . Westfall, 5 N. Y. Lee. Obs. 178; Dunckle v. Kocker, 11 Barb. 387; Breidert e. Vincent, 1 E. D. Smith, 542: Buck v. Waterbury, 13 Barb, 116: Tattersall v. Hass, 1 Hill, 56: Boomer v. Laine, 10 Wend. 525; Young r. Rummell, 2 Hill, 478; Evans v. Williams, 60 Barb. 346; Hall'r. Olney, 65 id. 27; Roer. Hanson, 5 Lans. 304; Clements v. Benjamin, 12 Johns. 299; Reed v. Barber, 3 C. R. 160; Hyland . Sherman, 2 E. D. S. 234;_ Carland r. Day, 4 d. 251; Smith v. Compton, 20 Barb. 262; Young Hubbell, 3 Johns, 430; Elwell v. McQueen, 10 Wend. 519; Peters e. Diossy, 3 E. D. S. 115; Harden v. Woodside, id. 37; Harpell. Curtis, 1 id. 78; Pickert v. Dexter, 12 Wend. 150; Moore v. Noble, 36 How, 385; 53 Barb. 423; Burlingham . Deyer, 2 Johns. 189; Rosekrans . Van Antwerp, 4 id. 228; Perry r. Weyman, 1 id. 520; Lawrence v. Houghton, 5 id. 129; Cobb . Curtis, 3 1d. 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 Johns. 441.

§ 2990. When jury trial may be demanded. - After an issue of fact has been joined, and at any time before the justice proceeds to an investigation of the merits of the action, by swearing a witness, or receiv

ing evidence, either party, or his attorney, may demand a trial by jury.

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

2991. Venire. Where a trial by jury is duly demanded, the justice 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.

Pover . N. Y. C. & H. R. R. R. Co., 7 Abb. N. C. 371; Knight v. Campbell, 62 Barb. 16; Ogden v. Parks, 16 Johns. 180; Fenwick . Parker, 3 C. R. 254; Hathaway v. Hilmer, 25 Barb, 29; Borst v. Bleecker, 6 Johns. 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 deliver the venire, or cause it to be delivered, 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 preju diced, 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.