CHAPTER 409.

AN ACT to authorize circuit courts and courts of oyer and terminer to require the attendance of additional jurors.

PASSED APRIL 27, 1870; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. Whenever any circuit court or court of oyer and terminer shall be satisfied that the public interest requires the attendance at such court, or at any adjourned term thereof, of a greater number of petit jurors than is now required to be drawn and summoned for such court, then said court may, by order entered in its minutes, require the clerk of the county to draw, and the sheriff to summon, such additional number of petit jurors as it shall deem necessary, which number shall be specified in the said order. The clerk of the county in which such court is held, shall, forthwith, bring into said court the box containing the names of the petit jurors from which jurors from said county is required to be drawn, and the said clerk shall, in the presence of said court, proceed publicly to draw the number of jurors specified in said order of such court, and when such drawing is complete, the said clerk shall make two lists of the persons so drawn, each of which shall be certified by him to be a correct list of the names of the persons so drawn by him, one of which he shall file in his office, and the other he shall deliver to the sheriff. The sheriff shall thereupon immediately proceed to summon the persons mentioned in such list to appear in the court in which the order requiring the attendance of such jurors shall have been made, on the day designated in such order, which day shall not be less than two days from the date of the entry of such order, and the persons so summoned shall appear in obedience to such summons. And all the provisions of law relating to the summoning and the swearing in of jurors, and their punishment for non-attendance, not inconsistent with this act, shall apply to the swearing in, summoning and punishment of the jurors drawn and summoned under this act. As amended by law,

1871, ch. 16.

§ 2. The jurors drawn, pursuant to the first section of this act, shall be subject to the same challenges as are the jurors under existing laws, and no other or different.

For other provisions relative to jurors, see Laws of 1861, ch. 210, as amended 1867, ch. 494.

a. Mode of trial.-Where the issue is such that a party is entitled, on proper demand, to have the same tried by jury, and he omits to claim such right, he cannot afterwards, on appeal, object to the mode of try

ing such issue. Pennsylvania Coal Co. v. Delaware and Hudson Canal Co. 1 Keyes, 72.

The objection that a cause should be tried by jury, should be taken before the trial is commenced. McKeon v. See, 4 Rob. 449.

b. Joint and several contract.-An action against two defendants upon a joint and several contract as joint, cannot be made a several action, unless one of the defendants is stricken from the record as a party, or has a defense personal to himself; and a several appeal by one defendant will not sever the action. Brown v. Richardson, 4 Rob. 603. See Paine v. Chase, 4 Hill, 563; Clark v. Parker, 19 Wend. 125.

inquest being taken, an affidavit of merits is c. Affidavit of merits.-To prevent an necessary. Jones v. Russell, 3 How. 324; S. C. 1 Code R. 113; Sheldon v. Martin, id. 81; Dickinson v. Kimball, id. 83; Anderson v. Hough, 1 Sandf. 721; S. C. 1 Code R. 50; 6 N. Y. Leg. Obs. 365. See, also, Sup. Ct. new Rules, 36.

d. When not necessary.-Where the answer sets up only a counterclaim, and there is no reply, an affidavit of merits is unnecessary. Potter v. Smith, 9 How. 262.

e. On the part of the plaintiff an affidavit of merits is never required. Regan v. Priest, 3 Denio, 163.

f. One affidavit of merits to prevent an inquest is sufficient, though the cause be several times noticed for trial and inquest, and though the venue be afterward changed to another county. Prescott v Roberts, 6 Cow. 46. g. Cannot be used for a double purpose.-An affidavit of merits made and used for one purpose in a cause cannot afterward be used for another purpose. Cutler v. Biggs, 2 Hill, 409; Belden v. Devoe, 12 Wend. 223; Robinson v. Sinclair, 1 How. 106; Popham ads. Baker, id. 165; Colegate v. Marsh, 2 id. 137. But an affidavit

of merits offered on a motion will not be excluded because it is of the same date as a copy which had been served to prevent an inquest; for th court will not presume without proof that it is an attempt to use the same affidavit twice. Mygatt v. Garrison, 18 Abb. 292 (n.) By new Rule 29, of the supreme court, it is provided that where an affidavit of merits has once been filed and served, no other shall be necessary on making a motion, and the service and filing may be shown by affidavit.

h. Where the cause is called in its order, the defendant may appear and defend, although no affidavit of merits has been filed and served. Starkweather v. Carswell, 1 Wend. 77.

i. By whom to be made.-Generally an affidavit of merits should be made by the

stances it may be made by his attorney or counsel, or his agent or attorney in fact, who is specially employed to defend the suit. Geib v. Icard, 11 Johns. 82; Johnson v. Lynch, 15 How. 199.

In either case, the attorney or agent who makes the affidavit, must show an adequate excuse for its not being made by the party, such as absence beyond seas, or from the State, which is usually deemed sufficient. id. Mason v. Bidleman, 1 How. 62.

It is no valid objection to such an affidavit, that the knowledge of the defense is sworn to be derived from the statement of the defendant, for this is all the information that as a general rule the attorney can ever have. Johnson v. Lynch, 15 How. 199. See, also, Philips v. Blagge, 3 Johns. 141.

The plaintiff is not precluded from presenting facts tending to show that the excuse offered for the absence of the defendant's affidavit is not well founded, but will not be permitted to controvert the merits which have been sworn to on the defendant's behalf. Ib.

Where made by other than the defendant, it should state a good excuse for not being made by the defendant himself. Roosevelt v. Dale, 2 Cow. 581; Mason v. Bidleman, 1 How. 62.

In an action against the maker and indorser of a note, an affidavit of merits by the maker will not prevent an inquest against the indorser unless it is shown that the defense of both is identical. Clark v. Parker, 19 Wend. 125.

Where several suits are brought against the maker and indorsers of a note, an affidavit of merits to set aside an inquest in all the causes may be made by the maker, where he is acquainted with the facts and the defense is identical in all the causes. President, etc. of the Ontario Bank v. Baxter, 6 Cow. 395.

j. Contents of affidavit. — The substance of an ordinary affidavit of merits is, that the defendant has fully and fairly stated the case to his counsel, giving the name and residence of such counsel, and that he has a good and substantial defense on the merits thereof, as he is advised by his said counsel, after such statement made as aforesaid, and verily believes to be true. Cannon v. Titus, 5 Johns. 355; Swartwout v. Hoage, 16 id. 3. Unless the language of the affidavit strictly conforms to the rule of the court, it may be treated as a nullity. Richmond v. Cowles, 2 Hill, 359.

An affidavit of merits which states that the party has fully and fairly stated "the facts of the case" to his counsel, is equivalent to the statement that he has fully and fairly stated "the case" to his counsel, and is sufficient. Jordan v. Garrison, 6 How. 6; S. C. 1 Code R. N. S. 400. An affidavit of merits, which says that the defendant has stated his defense instead of the case to his counsel, is fatally defective. Brownell v. Marsh, 22 Wend. 636; Richmond v. Cowles, 2 Hill, 359; Richards v.

10 How. 309; Ellis v. Jones, 6 id. 296.

An affidavit that defendant has stated the facts of his case to counsel, is insufficient. Fitzhugh v. Truax, 1 Hill, 644. Likewise, that he has stated "his case in this cause." Ellis v. Jones, 6 How. 296.

Modifying the statement required by the rule, by adding, "so far as the facts have come to defendant's knowledge,” unless sufficiently excused, renders the affidavit defective. Brown v. St. John, 19 Wend. 617.

An affidavit that the defendant has a good defense, etc., without adding " on the merits,” will be held to be defective. Howe v. Hasbrouck, 1 How. 68; McMurray v. Gifford, 5 id. 14; Meech v. Calkins, 4 Hill, 534.

k. Filing and serving copy of affidavit.-The affidavit of merits must be filed, and a copy with a notice of the filing of the original served on the plaintiff's attorney, before the first day of the circuit, or at least before an inquest is actually taken. Baker v. Ashley, 15 Johns. 536; Brainard v. Hanford, 6 Hill, 368; Anonymous, cited in 6 Abb. 512, MSS.

1. Mode of service.-Where a defendant delays until the second day of the circuit to file and serve an affidavit of merits in order to prevent an inquest, he is bound at his peril to serve it in such a way as, in all reasonable

probability, to bring the service to the knowledge of the attorney or counsel of the plaintiff having charge of the cause at the circuit, be fore the inquest is taken. Smith v. Aylesworth, 24 How. 33. Service on a clerk in the office, in the absence of the attorney, is equivalent to personal service on the attorney. id. As to the mode of service required under the former practice, see Brainard v. Hanford, 6 Hill, 368.

m. When inquest may be taken.An inquest may be taken at the opening of the court. Supreme Court new Rule, 36. the court, on any day after the first day of

But an inquest cannot be taken after the trial of a litigated cause has been commenced. Nichols v. Chapman, 9 Wend. 452. Nor, afcuit. Dickinson v. Kimball, I Code R. 83; ter the jury has been discharged for the cirHaines v. Davis, 6 How. 118; S. C. 1 Code R. N. S. 407.

An inquest may be taken on the first day of the court where the cause is regularly called up on the calendar on that day. Smith v. Brown, 1 Duer, 665.

In the first judicial district where a cause is noticed for trial for a particular term, it must be put upon the calendar for that term, otherwise the plaintiff cannot take an inquest at a subsequent term upon that notice. Culver v. Felt, 30 How. 442; S. C. 4 Rob. 681. The rule is not changed by the fact that the cause has been noticed by the defendant for that circuit. Potter v. Davison, 8 Abb. 43.

An inquest deferred, at the opening of the court, until a cause on trial is concluded, and

Where a cause, in the superior court, has been properly placed on the calendar for a short cause day, and is not reached for trial on that day, or is moved off without any day being assigned, and does not appear on the calendar for the next short cause day, either party may, at the opening of the court on that day, move the court to place the cause on the calendar, and when the cause is reached for trial, take the default of the other party if he fail to appear. The same course may be pursued where the court sets down a short cause for a particular short cause day, and the same does not appear on the calendar for that day. Barton v. McKinley, 38 How. 283.|

n. Rights of defendant on inquest. The defendant has a right to appear on inquest and object to the plaintiff's evidence, except to the judge's ruling, and cross-examine the plaintiff's witnesses; but he cannot prove a defense by them, or examine them on his own behalf. Green ads. Willis, 1 Wend. 78; Hartness v. Boyd, 5 id. 563. If the plaintiff fails to make out his case he may be nonsuited. Ib.

o. Counterclaim.-Where the defendant puts in a counterclaim which is not denied, and the defendant takes an inquest, the defendant's counterclaim must be allowed. Potter v. Smith, 9 How. 262.

p. Issues of fact.-Where the defendant fails to appear, issues of fact only, which have been noticed for trial and placed upon the calendar, when reached in their order, must be tried by the court and jury, unless the plaintiff elects to treat the failure of the defendant to appear, as a waiver by him of a trial by jury, in which case the issues may be tried by the court; but the plaintiff cannot in such a case, have the damages assessed by a sheriff's jury. Giberton v. Fleischel, 5 Duer, 652; Dolan v. Petty, 4 Sandf. 673. See, also, upon the question of waiver, Hendricks v. Carpenter, 1 Abb. N. S. 213; S. C. 2 Rob. 625;

S. C. Aff'd, 4 id. 665.

q. Allegations denied must be proved. Although the defendant fails to appear on the trial, it is nevertheless incumbent upon the plaintiff to prove all material allegations of the complaint which are denied by the answer, to entitle him to judgment. Patten v. Hazewell, 34 Barb. 421.

r. Waiving inquest.-A party having regularly taken an inquest is not bound to waive it, but may put the adverse party to his motion. Smith v. Howard, 12 Wend. 128. 8. Opening inquest-Setting aside inquest is discretionary with the court; but an inquest should not be set aside unless the

dence which would materially reduce the amount of the recovery. Leighton v. Wood, 17 Abb. 177. An application to set aside an order denying a postponement may be made before another judge, and the judgment may be vacated. Ramsey v. Erie Railway Company, 9 Abb. N. S. 243. The court will not open an inquest on the ground that the counsel was engaged before a referee or another court, and a material witness was absent. Ward v. Ruckman, 23 How. 330; S. C. Aff'd, 32 How. 616 (n.); Morris v. Slatery, 6 Abb. 74. Or where it appears that the answer was insufficient or frivolous. Hunt v. Mails, 1 Code R. 118. Or where the only defense was usury. Morris v. Slatery, 6 Abb. 74; Farish v. Corlies, 1 Daly, 274. Or because the action was improperly brought in the name of the husband and wife, or for a variance between the complaint and judgment, and the proof, or because an amendment was allowed by which the amount of the plaintiff's recovery was increased. Burger v. Baker, 4 Abb. 11.

As a condition to opening an inquest in a case where the statute of limitations had been interposed as a defense, the defendant was required to withdraw the plea. Fox v. Baker, 2 Wend. 244.

A motion to open an inquest will not be entertained, after a lapse of two years from the entry of judgment and notice thereof to the defendant, where the parties have resided within the jurisdiction of the court. Hendricks v. Carpenter, 1 Abb. N. S. 213; S. C. 2 Rob. 625; S. C. Aff'd, 4 id. 665.

Where a married woman, who obtained the credit by representing herself to be a widow, is sued as a feme sole, and allows judgment by default, the court will not open the judgment on motion, but leave her to an appeal. Genet v. Dusenbury, 2 Duer, 679; S. C. 11 N. Y. Leg. Obs. 355.

After a default has been regularly taken against a defendant, it will not be opened upon a mere general affidavit of merits. The nature of the defense must be disclosed, so that the court may judge whether it is meritorious. McGaffigan v. Jenkins, 1 Barb. 31; Ferussac v. Thorn, id. 42.

t. Not appealable.-An order granting or denying a motion to open an inquest is not reviewable by the general term on appeal. Farish v. Corlies, I Daly, 274. Millard v. Van Ranst, 17 Abb. 319 (n.) Whitaker v. Desfosse, 7 Bosw. 678. See, also, Leighton v. Wood, 17 Abb. 177.

u. Readiness for trial.-In order to bring a cause regularly to trial, it must be in such a situation that a final judgment can be rendered between all the parties. Morris v. Crawford, 16 Abb. 124.

In an action at issue as to all of several

defendants, no one of them can give notice of trial, and take judgment against the plaintiff by default on his failure to appear. cause must be ready for trial as to all the par

The

ties to the action, and must have been noticed for trial by all the defendants who have a right to appear on the trial and move for judgment against the plaintiff. Ward v. Dewey, 12 How. 193; Tracy v. New York Steam Faucet Manufacturing Co. 1 E. D. Smith, 349; Burnham v. De Bevorse, 8 How. 159; Powell v. Finch, 5 Duer, 666.

v. Separate trial-appearance and defense. One of two defendants, appearing by separate attorney, and having a separate and different defense, may bring the cause to trial as to himself, and may take a judgment of dismissal by default against the plaintiff, in case he does not attend. Gurnee v. Hoxie, 29 Barb. 547.

The power of the court to allow a separate trial is limited by § 274. 2 Till. & Shear, Pr. 429; 1 Van Sant. Eq. Pr. 466. See Goodyear v. Brooks, 4 Rob. 682-8; Morris v. Crawford, 16 Abb. 124; Gurnee v. Hoxie, 29 Barb. 548; Ward v. Dewey, 12 How. 195.

w. Trial by piece-meal.-A trial by the court without a jury cannot properly be had before several judges in succession, so as, after having been decided in part by one, to be taken up at a subsequent term and completed by another justice. Belmont v. Ponvert, 3 Rob. 693; S. C. Aff'd, id. 698.

x. Qualification of jurors-fees.-A person must be a freeholder or assessed upon personal estate in order to be qualified to act as a juror. Valton v. National Loan Fund Assurance Society, 17 Abb. 268; S. C. Rev'd, 1 Keyes, 21.

The provisions in Laws of 1870, ch. 539, relate to the fees of jurors in the city and county of New York; and, after providing that the sum of two dollars per day be paid for attendance on the court of general sessions and the court of oyer and terminer, provide further that "in other courts of record, each juror shall receive for each case in which he shall be impaneled, one dollar if the case be tried, and fifty cents if default be made, such fee to be paid by the clerk of the court, and to be collacted by him; fifty cents before the case is placed on the calendar, and if there be a trial, fifty cents before the verdict shall be entered. See 2 Albany Law Journal, 209.

y. Challenge for favor.-A juror challenged for favor should be rejected, unless the triers find that he stands impartial and indifferent. Smith v. Floyd, 18 Barb. 522. See, also, Maretzek v. Cauldwell, 2 Abb. N. S. 407 ; S. C. 5 Rob. 660.

z. Rejection of evidence by the judge as trier.-The rejection, as immaterial, of evidence offered in support of a challenge, by a judge who acts as trier, cannot be reviewed. Costigan v. Cuyler, 21 N. Y. (7 Smith), 134.

aa. Irregularity in drawing.-Any irregularity in the drawing of jurors which does not affect the composition of the jury, is not good cause of challenge to the array. Friery v. People, 54 Barb. 319; S. C. Aff'd, 2 Keyes,

424.

bb. Waiver.-Where, after the prisoner has challenged a juror for principal cause and the challenge has been overruled, he then challenges him peremptorily, he thereby waives the challenge for principal cause. Friery v People, 54 Barb. 319; S. C. Aff'd, 2 Keyes, 424.

Where parties proceed to trial before a jury without objection to the manner in which the jury was summoned or impaneled, it is too late of verdict to raise such objection. Dayharsh v. Enos, 5 N. Y. (1 Seld.), 531; Mayor, etc. of New York v. Mason, 1 Abb. 344, 352; S. C. 4 E. D. Smith, 142; Hardenburgh v. Crary, 15 How. 307.

cc. Struck jury.-The court will not order a struck jury in an action on a policy of marine insurance, where the allegation that the grounds of defense are intricate and difficult is only sustained by showing that the defense turns on the unseaworthiness of the vessel at the time she sailed, and on the additional fact that the master was chargeable with a want of competency and seamanship in not making a near port of distress at the time when the water is alleged to have been gaining upon and disabling his vessel, which he might and ought to have done in season to prevent her loss. Walsh v. Sun Mutual Insurance Co. 17 Abb. 356; S. C. 2 Rob. 646.

Cases in which struck juries have been allowed reviewed. Ib.

In New York city a special jury will not be ordered. Nesmith v. Atlantic Insurance Co. 8 Abb. 423. See Laws of 1857, ch. 530, providing for struck juries in the cities of New York and Buffalo.

Whenever the plaintiff has any thing to prove, dd. When plaintiff may begin. — on the question of damages or otherwise, he has the right to begin. Huntington v. Conkey, 33 Barb. 218; Hecker v. Hopkins, 16 Abb. 301 (n.); Littlejohn v. Greeley, 13 Abb. 41; Hollister v. Bender, 1 Hill, 150; Fry v. Bennett, 28 N. Y. (1 Tiff.), 324; Lexington Fire, Life, and Marine Insurance Co. v. Paver, 16 Ohio, 324; Richards v. Nixon, 20 Penn. St. 19; Thurston v. Kennett, 2 Foster, (N. H.) 151; Woller v. Morgan, 18 B. Monr. 136; Jackson v. Pittsford, 8 Blackf. 194; Latham v. Selkirk, 11 Texas, 314; Davis v. Brigham, 29 Maine, 391; Goss v. Turner, 21 Vt. 437; Leete v. Gresham Insurance Co. 7 Eng. Law and Eq. R. 578; Sutton v. Sadler, 3 C. B. N. S. 87; Amos v. Hughes, 1 Moo. and R. 464; Carter v. Jones, 6 C. & P. 64.

ee. When defendant may begin. When the issue to be tried arises upon affirm ative matter of defense set up in the defend. ant's answer, he has the right to begin on the trial. Ayrault v. Chamberlin, 33 Barb. 229; Hoxie v. Greene, 37 How. 97; Scudder v. Gori, 18 Abb. 223; Elwell v. Chamberlin, 31 N. Y. (4 Tiff.), 611; Caskey v. Lewis, 15 B. Monr. (Ky.), 27; Churchill v. Rogers, Hardin (Ky.), 182; Hodges v. Holder, 3 Camp. 366; Reeve v. Underhill, 6 C. & P. 773; Warner v. Haines, id. 666; Burrill v. Nicholson, 1