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of those who shall appear, it shall be the duty of the officer to summon a sufficient number of talesmen to supply tbe deficiency. The jury so selected, shall take the following oath or affirmation : “You and each of you do solemnly swear (or affirm) that you will well and truly try the matter of difference between

plaintiff, and defendant, and true verdict give according to law and the evidence given you in court: So help you God." And after having been sworn they shall sit together and hear the several proofs and allegations of the parties, wbich shall be delivered in public in their presence, and to each witness on any trial the justice shall administer the following oath or affirmation, to-wit: " You do swear in the presence of Almighty God (or affirm, under the pains and penalties of perjury), that the evidence you shall give in this matter of difference between

plaintiff, and defendant, shall be the truth, the whole truth, and nothing but the truth : So help you Gov.” And after hearing the proofs and allegations, the jury shall be kept together in some convenient place until they all agree upon a verdict, or be discharged by the justice; and for which purpose a proper officer shall be sworn or affirmed, to whom the said justice shall administer the following oath, to-wit: “You do swear in the presence of Almighty God, that you will, to the utmost of your ability, keep every person sworn in this inquest, together in some private, convenient place, without drink, except water; you will not suffer any person to speak to them, or speak to them yourself, unless by order of the justice, except it be to ask them whether they have agreed on their verdict, or are discharged by the court: So help you God." And when the jurors have agreed on their verdict, they shall deliver the same to the justice, publicly, who is hereby required to give judgment thereupon, and award execution in manner hereinafter directed.

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Discharge of SEC. 43. Whenever a justice shall be satisfied that a jury.

jury sworn in any cause before him, after having been out any reasonable time, cannot agree on their verdict, he may

discharge them and issue a new venire,, unless the parties consent, that the justice may render judgment.

SEC. 44. Every person who shall be duly summoned as a juror, and shall not appear, nor render a reasonable excuse jurors. for his default, shall be subject to a fine not exceeding ten dollars.

Penalty for nonattedance of

SEC. 45. The constable shall be in attendance on the Talesmen. court at and during the progress of the trial; and if from challenge or other cause the pannel shall not be full, he may fill the same by summoning talesmen from the bystanders or from the precinct.

SEC. 46. When a jury shall be in attendance and the Continuance of cause shall be continued, the jurors must attend at the time and place appointed for the trial without further notice.

jurors.

SEC. 47. If either party object to the competency of Competency of a juror, the question thereon must be tried in a summary manner by the justice, who may examine the juror or other witness under oath.

suit.

ered publicly.

SEC. 48. When the jury shall have agreed upon their Verdict deliv verdict, they shall deliver it to the justice publicly, who shall enter it upon his docket.

when verdict is

SEC. 49. It shall be lawful for the justice before whom Proceedings a cause has been tried on motion, and being satisfied that obtained by fraud the verdict was obtained by fraud, partiality or undue means, at any time within seven days after the entering of judgment,

to grant a new trial, and he shall set a time for the new trial New trial. if the motion be granted, of which the opposite party shall have at least three days notice.

SEC. 51. Upon the verdict being delivered to justice, and before judgment being rendered thereon,

SEC. 50. The opposite party shall also have a reasonable notice of such motion for a new trial if the same is not made on the day of the former trial and in the presence of such party; such notice to be given by the applying party. If the new trial shall be granted, or the jury be unable to agree, the proceedings shall be in all respects as upon the Failure to agree.

return of the summons.

Notice of new trial to opposite party.

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Bill of excep tions.

Actions when to be dismissed.

juror shall be entitled to receive one dollar which shall be taxed in the costs bill against the losing party. When the jury shall be unable to agree upon a verdict, the same compensation shall be paid them by the party calling the jury, and the same shall be taxed in the cost bill against the losing party.

SEC. 52. In all cases which shall be tried by or without a jury before a justice of the peace, either party shall have the right to except to the opinion of the justice upon any question of law arising during the trial of the cause; and when either party shall allege such exception it shall be the duty of the justice to sign and seal a bill containing such exceptions, if truly alleged, with the point decided so that the same may be made part of the record in the cause.

TITLE IX.

Entering and Setting Aside Judgments in Certain Cases.
SEC. 53. Judgment that the action be dismissed without

Judgment of dismissal with

ests when to be prejudice to a new action, may be entered with costs in the

entered.

Judgment when to be set aside.

following cases:

First, When the plaintiff voluntarily dismisses the action before it is finally submitted.

Second, When he fails to appear at the time specified in the summons or upon adjournment, or within one hour thereafter.

SEC. 54. If the plaintiff fail to appear at the return day of the summons, the action must be dismissed. If the defendant fail to appear at the return day of the summons, his default shall be recorded, and the plaintiff may proceed to prove his claim, which being established judgment shall be rendered in his favor, and if either party fail to attend at the time to which a trial has been adjourned, or either fail in the proof on his part, the cause may proceed at the request of the adverse party, and judgment must be given in conformity with the proof on his part.

SEC. 55. When judgment shall have been rendered against a defendant in his absence, who having been served with summons failed to appear, the same may be set aside

upon the following conditions, cause being shown by affidavits: First, That his motion be made within ten days after such judgment was entered upon notice to the opposite party. Second, That he pay the costs awarded against him.

Third. That he notify in writing the opposite party, his Conditions. agent or attorney, or cause it to be done, of the opening of such judgment and of the time and place of trial, at least five days before time if the party reside in the county, and if he be not a resident of the county, by leaving a written notice thereof at the office of the justice ten days before its trial.

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Immediate judg ment in cases of attachment.

SEC. 56. Upon a verdict the justice must immediately ju render judgment accordingly, when the trial is by the justice, judgment must be entered immediately after the close of the trial, if the property of the defendant has been attached. In other cases it must be entered either at the close of the trial or within twenty-four hours thereafter, unless Sunday intervene, then forty-eight hours.

When either party may remit excess of dues be

risdiction.

SEC. 57. When the amount due to either party exceeds the sum for which the justice is authorized to enter judgment, yond justice's jusuch party may remit the excess, and judgment may be entered for the residue. A defendant need not remit such excess, and may withhold setting the same off, and a recovery for the amount set-off and allowed, or any part thereof, shall not be a bar to his subsequent action for the amount withheld.

Offer to allow

SEC. 58. If the defendant, any time before trial, offer judgment. in writing, to allow judgment to be taken against him for a specified sum, the plaintiff may immediately have judgment therefor with the costs then accrued. But if he does not accept such offer before the trial, and fail to recover in the action a sum exceeding the offer, he cannot recover costs accrued after the offer, but costs must be adjudged against him; but the offer and failure to accept it, can not be given. in evidence to effect the recovery, otherwise than the costs as above provided.

In other cases when to be rendered.

When otherwise.

Amount of eosts when offer is not accepted.

Mutual judg ments set off.

When transcript to be prodroed.

Justice to make -try thereof,

Execution.

Certificate.

TITLE X.

Set-off of Judgment Against Judgment.

SEC. 59. If there be mutual justice's judgments between the same parties, upon which the time for appealing has elapsed, one judgment on the application of either party, and reasonable notice given to the adverse party, may be setoff against the other, by the justice before whom the judgment against which the set-off is proposed may be entered.

SEC. 61. If any justice shall set-off one judgment against another, he shall make an entry thereof in his docket, and execution shall issue only for the balance which may be due after such set-off. If a justice shall allow a transcript of a judgment rendered by another justice to be set-off, he may file such transcript among the papers relating to the judgment in which it is allowed in set-off. If he shall refuse such transcript as a set-off, he shall so certify on the transcript and return the same to the party who offered it; if Duty of justice executions shall have been issued on judgments set-off, they to balance ju shall be recalled by the proper justice and the costs upon such execution set-off with the judgment where the same is chargeable to the judgment debtor, the duty of the justice being to balance the larger judgment with the lesser one, to the amount of the lesser one together with legal costs thereon.

judg

ments.

SEC. 60. If the judgment proposed as a set-off was rendered before another justice, the party proposing such setoff must produce before the justice a transcript of such judgment, upon which there is a certificate of the justice rendering the judgment, that it is not satisfied in whole or in part, and that there is no appeal, and such transcript was attained for the purpose of being a set-off against the judgment to which it was offered as a set off. The justice granting such transcript shall make an entry thereof in his docket, and all further proceedings on such judgment shall be stayed unless such transcript shall be returned with the proper justice's certificate therein. That it has not been allowed in se'-off.

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