Effect of failure of defendant to appear.

the defendant makes default in appearing or pleading, return of a summons, which has been duly served as 1 in this chapter, the justice must hear the allegations fs of the plaintiff, and render judgment according to equity, as the very right of the case appears.

42, § 92 (2 Edm. 259).

When justice to try issue of fact.

an issue of fact has been joined, if neither party detrial by jury, the justice must try the issue, hear the s and proofs of the parties, and render judgment as I in the last section.

When Jury trial may be demanded.

time when an issue of fact is joined either party may trial by jury, and unless so demanded at the joining jury trial is waived. And (for the purpose of obtaining ry) the town clerk of every town in this State shall, days after this act shall take effect, deliver to each of es of the peace in his town a certified copy of the list him, in pursuance of section one thousand and thirtythis Code, and he shall also deliver to each of said certified copy of any such list hereafter filed with him, days after the same shall be so filed. The town clerk to a fee of one dollar for each copy of said list so deAny town clerk who shall neglect to deliver a copy of each of the justices of the town within the time above , shall forfeit ten dollars for each failure, to be sued ecovered by the overseers of the poor of said town for the poor of said town.

am'd.

§ 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 adjourn ment, 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 judg ment 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 thirty-three of this Code, and in either case draw another ballot, and continue to do so until twelve are drawe. After the adjournment 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 3 new list of jurors is delivered to him by said town clerk.

§ 2992. Id.; in action between two towns, etc.

Where the action is between two towns or cities, or betwee 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.

2 R. S. 242, § 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 constab 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 s 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 misde meanor. 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

of the imposition of such fine, to be collected by execued by the justice as upon a judgment, with costs of the which fine shall be paid over to the use of the poor ounty by the justice, but upon the presentation of a le and sufficient excuse by or on behalf of the person the justice may, at any time, remit such fine, or any reof.

242, §§ 97, 98; L. 1847, ch. 470, § 3 (4 Edm. 591).

Ballots; how prepared.

e purpose of procuring a jury to try the action, the ust prepare, or cause to be prepared, ballots, uniform, as may be, in appearance, by writing the name of each eturned, who attends, upon a separate piece of paper. table, in the presence of the justice, must roll up or ballot in the same manner, as nearly as may be, so emble the others, and so that the name is not visible. ots must be deposited in a box, or other convenient

e.

Drawing jurors.

stice must then openly draw out, one after another, six llots. If a person, whose name is drawn, is challenged side, or is excused, another ballot must be drawn, and ccessively, until the required number of jurors is obThe parties may elect to try the cause by a less number jurors, at any time before a witness is sworn. The o selected as herein provided, constitute the jury to etion.

1.

Jurors in default.

e

fficient number of competent jurors do not attend, the all issue an attachment against all defaulting jurors, place the same in the hands of the officer who sumsame, commanding him forthwith to attach such d to bring them before him at a time specified not 1 thirty-six hours thereafter, to which the cause must ned. The juror or jurors so attached shall, in addition e specified in section 2993 of this act, be required to xpense of the attachment and service thereof; which he officer's fees, together with all necessary expense y him in serving said attachment, to be audited and be enforced in the same manner, and when collected 1 to the officer or the party who has paid the same. on so attached and disobeying or resisting the service tachment is guilty of a misdemeanor.

Am'd, 1892.] New venire, etc.

constable, to whom the venire is delivered, does not as required thereby: or it is for any reason set aside, e must proceed to draw another jury, in the manner in the foregoing sections, which shall be summoned anner as the first jury. If a full jury, drawn e returned as prescribed in the foregoing sections obtained, the justice may direct the constable to e attendance forthwith, or at such time as he may

designate, not longer than twenty-four hours after the issuing thereof, of such a number of talesmen, from the bystanders or from the town, qualified to serve as jurors, as he deems sufficient for the purpose; or in his discretion he may draw from the jury box, double the number of jurors required to complete the jury in the manner required by the foregoing sections, which shall be summoned in like manner as the first jury, and he shall continue to do so till a jury is obtained. Nothing herein before contained shall preclude the justice from adjourning the trial of the case, on his own motion, or on the application of either i of the parties to the action, as provided by sections twenty-nine hundred and fifty-nine to twenty-nine hundred and sixty-eight of the Code of Civil Procedure.

L. 1892, ch. 567.

§ 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 defendant, and unless discharged by the justice, a true verdict to give, according to the evidence.

plaintiff, and

2 R. S. 242, § 103.

§ 2999. Jury to hear proofs.

After the jurors have been duly sworn, they must sit together and hear the allegations and proofs of the parties, which must be made publicly, in their presence.

Id., § 104.

§ 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 differen between plaintiff, and defendant, sha be the truth, the whole truth, and nothing but the truth.

Id., § 108.

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

Where a witness, attending before a justice in an action. re fuses to be sworn or affirmed in the form prescribed by law; of to answer a pertinent and proper question; or neglects or refuses to produce a book or paper which he has been duly subpoena to produce, as prescribed in section 2969 of this act, or dur required to produce by an order, made as prescribed in sectio 867 of this act; and the party, at whose instance he attended makes oath that the testimony of the witness, or that the bo or paper is so far material, that without it he cannot safe proceed with the trial of the action, the justice may, by warrant commit the witness to the jail of the county,

Id., 279, am'd.

§ 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 quest must be specified therein; if for neglecting or refusing to pr duce a book or paper, the same must be described with conve

rtainty. The recusant witness must be closely confined, e of the warrant, until he submits to be sworn or affirmed, swer, or to produce the book or paper required, as the y be; or is otherwise discharged according to law. - § 280.

Adjournment thereupon.

stice must thereupon, from time to time, at the request arty in whose behalf the witness attended, adjourn the til the witness testifies, or produces the book or paper or dies, or becomes a lunatic, or is discharged according

Ex parte affidavit; when evidence.

parte affidavit shall not be received in evidence upon a hout the consent of both parties, except in a case where ially allowed by law.

242, § 105.

Competency of witness; how determined.

ection to the competency of a witness must be tried and ed by the justice. Where the ground of the objection pon a matter of fact, evidence may be given thereupon, any other question of fact; except that, if the witness ed thereupon by the party objecting, no other testimony -eceived from either party as to his competency.

Constable to keep jury; his oath.

earing the allegations and proofs, the jury must be kept n a private and convenient place, under the charge of le, until they all agree upon their verdict; and, for that he justice shall administer to the constable the following ou swear in the presence of Almighty God, that you he utmost of your ability, keep the persons sworn as on this trial together, in a private and convenient hout any meat or drink except such as shall be ordered at you will not suffer any communication to be made orally or otherwise; that you will not communicate à yourself, orally or otherwise, unless by my order, or m whether they have agreed upon their verdict, until discharged; and that you will not, before they render ict, communicate to any person the state of their de, or the verdict they have agreed upon."

Rendition of verdict; plaintiff need not be called. he jurors have agreed upon their verdict, they must liver it to the justice, who must enter it in his docketis not necessary to call the plaintiff before receiving t; and the plaintiff cannot submit to a nonsuit or the action, after the cause has been committed to the