TITLE 5.

between

plaintiff, and

defendant, shall

Witness refusing to be sworn,

be the truth, the whole truth, and nothing but the truth.

[Id., § 108.]

§ 3001. Where a witness, attending before a justice in an action, refuses to be sworn or affirmed in the form prescribed by law; or to rant there answer a pertinent and proper question; or neglects or refuses to

etc. War

upon.

Contents

of war.

prison

ment of recusant witness.

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 (3 R. S., 5th ed., 461; 2 Edm., 282), amended by adding the second clause relating to the production of books, etc. It was held in Lane v. Cole, 12 Barb. 680; and Bonesteel v. Lynde, 8 How. Pr., 226, affirmed id., 352; that a failure to produce a document called for by a subpoena duces tecum, issued from a court of record, is a contempt of the court. Perhaps the rule was also applicable to a case in a justice's court; but the question was doubtful, and as it clearly appeared that the rule should be so applicable, the section was so framed as to remove all doubts upon the subject. For some important rulings under the provisions revised in this and the next section, which are equally applicable to the sections as they now stand, see Rutherford v. Holmes, 66 N. Y., 368. ]

§ 3002. The warrant must specify the cause for which it is isrant: im- sued. 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 ɔtherwise discharged according to law.

Adjournment thereupon.

[Id., § 280, amended by inserting the provisions as to books, etc., so as to conform this section to the last section; and by adding the last geven words. ]

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

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CHAP. XIX.]

TRIAL.

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, amended in like manner.]

TITLE 5.

affidavit;

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

[Id., § 105 (3 R. S., 5th ed., 442; 2 Edm., 260), amended by the insertion of the exception, so as to except affidavits not relating to the merits, and cases provided for by special statutes. L. 1835, ch. 159, L. 1858, ch. 244, and the like. See, §§ 922, 926, 927.](*)

dence.

tency of

how de

termined.'

§ 3005. An objection to the competency of a witness must be Compe tried and determined by the justice. Where the ground of the witness; 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. [IJ., § 107.]

to keep

oath.

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

[Id., § 109, substantially unaltered.]

[9]

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TITLE 5. Rendition of verdict; plaintiff

need not be

called.

Jury when

to be dis

charged;

new

venire.

Fine to be imposed on defaulting juror.

§ 3007. When the jurors have agreed upon their verdict, they must publicly deliver it to the justice, who must enter it in his docketbook. 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, amended by substituting the last sentence, for the provision, requiring the plaintiff to be called and to be present, when the verdict is received. The amendment establishes the same rule in a justice's court, which governs in a court of record. The retention in a justice's court of the useless formality of calling the plaintiff, for so many years after it was abrogated in courts of record, was doubtless due to the fact, that in the former, it rested upon a statutory enactment, the repeal of which no one had any special interest in procuring.]

§ 3008. 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 fortyeight 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, amended by adding the words, "and their consent is entered in the justice's docket-book."]

§ 3009. A person duly notified to attend as a juror, who fails to attend, or, attending, refuses to serve, without a reasonable excuse, proved by his oath, or the oath of another person, is liable to the same fine, to be imposed and collected, 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 subpoenaed as a witness, and not attending, or attending and refusing to testify.

[Id., § 112, as remodelled by L. 1873, ch. 146 (9 Edm., 580); amended so as to correspond with § 2974, ante. A statement of the origin of the defect in the statute, which led to the enactment of the act of 1873, will be found in the note to the last-mentioned section. The proceedings regulated by the act of 1873 are, substantially, the same as those for which §§ 2975, etc., ante, provide: these are taken into the foregoing section by the reference.]

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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.

TITLE 6.

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.

by con

fession.

§ 3010. A justice of the peace may enter a judgment upon the Judgment 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.

[2 R. S., 245, Part 3, ch. 2, tit. 4, § 113 (3 R. S., 5th ed., 443; 2 Edm., 262), as modified by Co. Proc., § 53, subd. 8; amended by substituting the word, "to," for "interested in," after "parties."]

§ 3011. A judgment upon confession shall not be rendered, Id.; mode 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 above all just demands which the defendant has against the plaintiff ; and that the confession is not made or taken with intent to defraud any creditor.

[Id., § 114.]

of confessing judgment.

§ 3012. A judgment confessed, otherwise than as prescribed in Id.; when' the last section, is void, as against every person, except a purchaser

void.

TITLE 6.

Judgment

of non

suit.

Judginent upon ver

in good faith of property, real or personal, thereunder, and the defendant making the confession.

[Id., § 115.]

§ 3013. Judgment of nonsuit, with costs, must be rendered against a plaintiff prosecuting an action before a justice of the peace, in either of the following cases:

1. If he discontinues or withdraws the action.

2. If he fails to appear within one hour after the summons is returnable, or within one hour after the time to which the trial has been adjourned.

3. If he is nonsuited upon the trial.

[Id., § 119, amended by consolidating subd. 2 and 3, and omitting subd. 5, which read as follows: "If he shall not appear on the coming in of the jury to hear their verdict." See § 3007, ante, and note.]

§ 3014. Where a verdict, or the decision of the justice upon a dict, etc. trial without a jury, is rendered in favor of either party, the justice must render judgment against the adverse party in conformity thereto, with costs, except as is otherwise specially prescribed by law.

[Substituted for id., §§ 120 and 121, which read as follows.

66

120. Judgment for the defendant, with costs, shall be rendered, whenever a trial has been had, and it be found by verdict, or by the decision of the justice, that the plaintiff has no cause of action against the defendant."

§ 121. If upon the trial of the cause, or upon an ex parte hearing, in those cases where it may be had on the defendant's failing to appear, a sum, in debt or damages, shall be found in favor of the plaintiff. then judgment shall be rendered against the defendant for such debt or damages and the costs."

These sections manifestly failed to include many cases, even before the jurisdiction of a justice's court was extended, by the acts passed since the enactment of the Revised Statutes; and when this Code was enacted, they had become wholly insufficient. Judgment upon the failure of the defendant to appear or answer, is fully provided for in § 2988, ante. The words, "except as is otherwise specially prescribed by law", refer to cases, where the judgment does not strictly conform to the verdict (as where the prevailing party remits a part of the verdict, post, 3016); or where costs do not follow the recovery (as where an offer has been made, etc.); or where a party dies before the verdict (see § 765) and the like. The justice may enter a judgment, in an action for a personal injury, where a party dies after verdict, or decision, 764, but he cannot enter judgment in any case, where a party dies before the verdict or decision, § 765. These two sections are made applicable to these courts by § 3347, subd. 6.](•)

68