tiff, who shall be then attending, may be then examined on oath by ART. 5. such justice, his testimony reduced to writing, certified by the justice, and left with him, to be read on the trial of the cause: or, 3. On the application of the plaintiff, supported by his oath, that on account of the absence of some material witness or testimony, he can not then safely proceed to the trial of the cause.31 fendant to $71. If a cause commenced by warrant, be adjourned upon the When de application of the defendant, he shall continue, during the time of ad- continue in journment, in the custody of the constable, unless he shall give the security herein after directed to be given, in cases of adjournment.31 custody. $72. If such cause be adjourned on the consent of both parties, or when to be if it be adjourned on the application of the plaintiff, the defendant shall discharged. be discharged from custody; but the cause shall not be discontinued by such discharge; and at the adjourned day, the same proceedings shall be had, as on the return of a summons personally served. $73. The first adjournment of a cause commenced by warrant, Time of adshall be to a day not less than three, nor more than twelve days there-journment. after, unless the parties and justice shall otherwise agree.31 by defendant. $74. In all cases (other than where the suit shall have been com- Adjournment menced by warrant, at the suit of a non-resident plaintiff,) the cause shall be adjourned on the application of the defendant, on his complying with the following requisitions: 1. The application must be made at the time of joining issue: 2. If required by the plaintiff or the justice, the defendant shall make oath that he can not safely proceed to trial, for the want of some material testimony or witness, to be specified by him: 3. If required by the plaintiff, he shall give security, as herein after directed: Such adjournment shall be for such reasonable time, as will enable the defendant to procure such testimony or witness, not exceeding ninety days.31 $75. In all cases, defendant shall also be entitled to a further ad- Ib. further journment, upon giving security, if required, as is directed in the next adjournment. succeeding section, and upon proving, by his own oath or otherwise, to the satisfaction of the justice, that he can not safely proceed to trial, for want of some material testimony or witness, and that he has used due diligence to obtain such testimony or witness.31 Form of se $76. The security required by any of the preceding sections to be given by a defendant, shall be a bond in the penalty of one hundred curity. dollars, to the plaintiff in the action, with such surety as the justice shall approve, conditioned, that in case judgment shall be given against such defendant at the adjourned day, or at any time thereafter, and execution be issued against his person, he will render himself upon (31) Laws of 1824, p. 291, § 5 & 6. TITLE 4. such execution, before the return thereof; or in default thereof, that he or his surety will pay the judgment so recovered, with interest; but if any bond shall have been given upon any prior adjournment, it shall not be necessary to execute a new bond upon a subsequent adjournment, unless such bond be required by the justice, or by the bail of such defendant in such prior bond. Proof necessary to recovery thereon. Adjourn ments not to exceed 90 days. When party to exhibit his account. When justices may issue subpoenas. Ib. in a snit before an $77. In any suit brought upon such bond, the plaintiff shall not be entitled to recover, unless he shows an execution upon a judgment obtained in the suit in which such adjournment was had, duly issued, within ten days after the time when by law the same could be issued, against the person of the defendant, and a return thereon that such defendant could not be found. $78. No adjournment shall be allowed, without the agreement of the parties, to a time beyond ninety days from the joining of the issue in the suit.32 $ 79. No adjournment shall be allowed in any case to a party applying therefor, who shall have seen the account or demand of the opposite party, unless such applicant, if required, shall exhibit his account or demand, or state the nature thereof, as far forth as may be in his power, to the satisfaction of the justice.32 ARTICLE SIXTH. Of Compelling the Attendance of Witnesses. SEC. 80. Justices may issue subpoenas for witnesses to appear, in certain cases. 81. Proof to be given before subpoena issued in a cause before another justice. 82. Subpoenas how and by whom served; fee to be paid. 83. When attachment to be issued against witness refusing, &c. to appear. 84. How executed; fees thereon by whom to be paid. 85. Fine on witness refusing to appear or to testify. 86 & 87. Fine how imposed; record of conviction. 88. Execution to collect fine; how long defendant to be imprisoned. 89. Application of money collected. 90. Party refusing, &c. to obey subpœna, liable for damages. $80. Any justice of the peace may issue subpoenas, to compel the attendance of witnesses to give evidence on any trial depending before himself or any other justice. Such subpoena shall be valid to compel the attendance of a witness being in the same county where the cause is to be tried, or being in an adjoining county; and in no other case.35 $81. A justice shall not issue any subpoena to compel the attendother justice. ance of witnesses before another justice, in any suit, unless the person applying shall prove, by his own oath, or the oath of some other person, that such suit is actually depending before such other justice.35 Subpoena, how served. $82. A subpoena may be served, either by a constable, or any other person; and it shall be served by reading the same, or stating the contents to the witness, and by paying or tendering the fees allowed by law for one day's attendance of such witness. 33 (32) Laws of 1824, p. 291, § 6. (33) Ib. § 11. nesses. $83. Whenever it shall appear to the satisfaction of the justice, ART. 6. by proof made before him, that any person duly subpoenaed to appear Attachments before him in any cause, shall have refused or neglected, without just against witcause, to attend as a witness, in conformity to such subpoena, and the party in whose behalf such witness shall have been subpoenaed, shall make oath that the testimony of such witness is material, the justice shall have power to issue an attachment to compel the attendance of such witness. ed. Fees thereon. $84. Every such attachment shall be executed in the same man- How executner as a warrant, and the fees of the officers for issuing and serving the same, shall be paid by the person against whom the same shall have been issued, unless he shall shew reasonable cause to the satisfaction of the justice, for his omission to attend; in which case, the party requiring such attachment, shall pay all costs of such attachment and the service of the same. fusing to ap $85. Every person duly subpoenaed as a witness, who shall not Fine for reappear, or appearing, shall refuse to testify, shall forfeit, for the use pear or testify of the poor of the town, for every such non-appearance or refusal, (unless some reasonable cause or excuse shall be shewn on his oath or the oath of some other person,) such fine, not less than sixty-two cents, nor more than ten dollars, as the justice before whom prosecution therefor shall be had, shall think reasonable to impose.34 $86. Such fine may be imposed by the justice, if the witness be Fina how impresent and have an opportunity of being heard against the imposition thereof.34 posed. conviction. $87. The justice imposing any fine, shall make up and enter in Record of his docket, a minute of the conviction and of the cause thereof, and the same shall be deemed a judgment, in all respects, at the suit of the overseers of the poor of the town.34 collect. $88. Upon the imposition of such fine, and in default of payment Execution to thereof, with costs, the justice shall forthwith issue an execution to any constable of the county, directing him to levy such fine, with costs, of the goods and chattels of the delinquent, and for want thereof, to take and convey him to the jail of the county, there to remain Imprisonuntil he shall pay such fine and costs; and the keeper of such jail is fendant. hereby required to keep such delinquent in close custody, in such jail, until the fine and costs be paid; but such imprisonment shall not exceed thirty days.34 ment of de lected, how $89. When the money shall be collected on such execution, the Money colconstable shall return the same to the justice, and such justice shall applied. pay over the amount of the fine imposed, to the overseers of the poor of the town, for the use of the poor. 34 TITLE 4. Liability for damages. to try issues. $ 90. Every person subpoenaed as aforesaid, and neglecting or refusing to appear or testify, shall also be liable to the party in whose behalf he shall have been subpoenaed, for all damages which such party shall sustain, by reason of such non-appearance or refusal. ARTICLE SEVENTH. Of the Trial of Issues of Fact, and the Incidents thereto. SEC. 91. Issues to be tried by justice, if jury not required. 92. When to proceed ex parte on default of defendants. 93. At what time jury may be demanded by either party. 94. Venire to be issued; to whom directed; its contents. 95. Parties may agree on number of jurors; venire to correspond. 96. Variance in venire when suit between two towns. 97. To what constable venire to be delivered. 98. Duty of constable in executing; return of venire. 99 & 100. Proceedings for drawing jury on trial. 101. If sufficient jurors not drawn, deficiency how supplied. 102. In what cases new venire to be issued. 103 & 104. Jurors' oath; publicly to hear proofs, &c. of parties 106. In what cases only parties may be witnesses. 107. Competency of witnesses offered, how tried and determined 109. Jury to be kept by constable; his oath for that purpose. 110. Verdict how returned, &c.; plaintiff to be present at receiving When justice $91. Whenever issue shall have been joined in a suit before a justice, if no jury shall have been demanded by either party, the jus tice shall proceed to try such issue, to hear the proofs and allegations of the parties, and to determine the same, according to law and equity, as the very right of the case may appear. When to proceed ex parte. When Jury may be demanded. Venire; its contents. $92. Whenever a defendant, who has been personally served with a summons, or who shall have procured an adjournment, without having joined issue, shall neglect to appear and join issue, the justice shall proceed to hear the proofs and allegations of the plaintiff, and determine the same as above prescribed. $93. After issue joined, and before the justice shall proceed to an investigation of the merits of the cause, by an examination of a witness, or the hearing of any other testimony, either of the parties, or the attorney of either of them, may demand of the justice, that the cause be tried by a jury.3 35 $94. Upon the demand of a trial by jury, the justice shall issue a venire directed to any constable of the county wherein the cause is to be tried, commanding him to summon twelve good and lawful men, in the town where such justice resides, qualified to serve as jurors, and not exempt from serving on juries in courts of record, who shall be in no wise of kin to the plaintiff or defendant, nor interested in such suit, to appear before such justice, at a time and place to be named therein, to make a jury for the trial of the action between the parties named in such venire.35 (35) Laws of 1824, p. 291, § 10. ART. 7. § 95. The parties may agree upon any number of jurors, less than six, to try the cause; and the justice shall direct in the venire, the Ib. as to numsummoning of so many jurors, as shall be double the number so agreed ber of jurors. upon. between two $96. If the action in which such issue shall be joined, be between Ib. in suits two towns, the venire shall direct the constable to summon twelve towns. good and lawful men of the county, qualified and not exempt, and not interested, as herein before provided, to make a jury for the trial of such action. venire. $97. The justice issuing a venire, shall deliver, or cause the same Delivery of to be delivered, to some constable of the county, disinterested between the parties, and against whom no reasonable objection shall have been made by either party. executed and $98. The constable to whom any venire shall be delivered, shall How to be execute the same fairly and impartially; and shall not summon any returned. person whom he has reason to believe biassed or prejudiced for or against either of the parties. He shall summon the jurors personally, and shall make a list of the persons summoned, which he shall certify and annex to the venire, and return to the justice.3 36 $99. At the trial of the cause, the names of the persons so return- Drawing jury ed, and who shall appear, shall be respectively written on several and distinct pieces of paper, as nearly of one size as may be; and the constable, in the presence of the justice, shall roll up or fold such pieces of paper, as nearly as may be, in the same manner, and put them together in a box, or some convenient thing." 36 $100. The justice shall then draw out six, (or such number as the I parties may have agreed upon,) of such papers, one after another, and if any of the persons whose names shall be so drawn, shall be challenged and set aside, then such further number shall be drawn as will make up the number required, after all legal causes of challenge allowed by the justice. The persons so drawn, appearing, and approved as indifferent, shall compose the jury to try the cause.36 cies how sup $101. If a sufficient number of competent jurors shall not be Ib. deficien drawn, the justice may supply the deficiency by directing the consta-plied. ble to summon any of the by-standers, or others, who may be competent, and against whom no cause of challenge shall appear, to act as jurors in the cause.36 $ 102. If the constable to whom the venire shall have been deli- New venire. vered, do not return the same as thereby required, or if a full jury shall not be obtained, in the manner declared in the preceding sections, the justice shall issue a new venire.3 36 § 103. To each juror the justice shall administer an oath or affir- Jurors' oath. mation, well and truly to try the matter in difference between (36) Laws of 1824, p. 291, § 10. |
