$95. The parties may agree upon any number of jurors, less than ART. 7. 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 S96. 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.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. $ 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.3 S101. If a sufficient number of competent jurors shall not be drawn, the justice may supply the deficiency by directing the constable 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 Ib. deficien. cics how sup plied. $ 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 $ 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. TITLE 4. plaintiff, and To hear proofs, &c. Ex parte affidavits. Parties, when witnesses. Competency of witnesses. Oath of wit nesses. Constable to keep jury. His oath. Return of verdict. defendant, and unless discharged by the justice, a true verdict to give, according to evidence. 37 $104. After the jury shall be duly sworn, they shall sit together and hear the proofs and allegations of the parties, which shall be delivered publicly, in their presence.3 37 $ 105. No ex parte affidavit of any person shall be allowed or given in evidence on any trial, either with or without a jury, unless the parties agree to allow the same.37 $106. A party in the suit, or having an interest in the verdict, may be a witness to prove the death or absence beyond the reach of a subpoena of the justice, of a subscribing witness to, or the loss of, any instrument, which shall come in question on the trial, in order to introduce other proof of the execution or contents of such instrument; but in no other case, without the consent of the parties.37 S 107. If a witness, on being produced, shall be objected to as incompetent, such objection shall be tried aud determined by the justice. Evidence may be given in support of, or against such objection, as in other cases; or the proposed witness may be examined on oath, by the party objecting, and if so examined, no other testimony shall be received from either party, as to the competency of such witness. S108. Every person offered as a witness, before any testimony be given by him, shall be duly sworn or affirmed, that the evidence he shall give relating to the matter in difference between plaintiff, and defendant, shall be the truth, the whole truth, and nothing but the truth.37 $109. After hearing the proofs and allegations, the jury shall be kept together in some convenient place, under the charge of a constable, until they all agree upon their verdict; and for that purpose, the justice shall administer to such 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 on this trial, together, in some private and convenient place, without any meat or drink, except such as shall be ordered by me; that you will not suffer any communication, orally or otherwise, to be made to them; that you will not communicate with them yourself, orally or otherwise, unless by my order, or to ask them whether they have agreed on their verdict, until they shall be 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 on."37 $110. When the jurors have agreed on their verdict, they shall deliver the same to the justice, publicly, who shall enter it in his docket. Previous to receiving it, the justice shall call the plaintiff. (37) Laws of 1824, p. 291, § 10. If he be absent, and no one appear for him, the verdict shall not be ART. 8. received. be discharged $111. Whenever a justice shall be satisfied that a jury sworn in Jury when to any cause before him, cannot agree on their verdict, after having been out a reasonable time, he may discharge them, and shall issue a new New venire. venire, returnable within forty-eight hours, unless the parties shall have consented that the justice may render judgment on the evidence already before him; which in such cases he may do. Fine on ju fault. $112. Every person who shall be duly summoned as a juror, and rors for deshall not appear, nor render a reasonable excuse for his default; or appearing, shall refuse to serve; shall be subject to the same fine, to be prosecuted for and collected with costs, in the same manner, and applied to the same use, as herein before provided, in respect to a person subpoenaed as a witness, and not appearing, or appearing and refusing to testify.38 ARTICLE EIGHTH. Of Judgments, and Filing Transcripts thereof. SEC. 113. Judgment on confession may be entered for not more than $250. 115. Judgments otherwise confessed void, with certain exceptions. &c. 122. Judgment against joint defendants, on appearance of one, 125. Any party may remit excess, &c. in certain cases. 126. Costs to be awarded; whole amount not to exceed five dollars, except, &c. 127. Justice to furnish transcript of judgments over $25. 128. County clerk to file transcript; to become a lien on real estate. 129. Such judgments may be revived. Confession. S 113. A justice of the peace may enter a judgment, by confession Judginents by of the defendant, in any case where the debt or damages confessed, shall not exceed two hundred and fifty dollars, with such stay of execution, as may be agreed on by the parties interested in such judg ment.39 $114. No confession shall be taken, or judgment rendered there- Requisites. on, unless the following requisites be complied with: 1. The defendant must personally appear before the justice: Defendant must be pre sent. 2. The confession shall be in writing, signed by the defendant, and it must be in filed with the justice: writing. lars,affidavits 3. If the judgment be confessed for a sum exceeding fifty dollars, If over 50 doithe confession shall be accompanied by the affidavit of the defendant must be made and plaintiff, stating that such defendant is honestly and justly indebted to the plaintiff in the sum named in such affidavit, over and above (38) Laws of 1824, p. 291, § 11. (39) Ib. § 12 & 13. TITLE 4. all just demands which he has against him, and that such confession is not made or taken with a view to defraud any creditor.40 When void. Proceedings on justices' may be stay $115. Every judgment confessed without a compliance with the provisions of the last preceding section, shall be void as against all persons, except a purchaser in good faith of any goods or chattels, lands or tenements, under such judgment, and except the defendant making such confession.40 $116. Any judge of the court of common pleas of the county, may, on the application of any creditor of the person against whom any judged by county ment shall have been recovered, upon confession or otherwise, that judge. shall be a lien on the real estate of the defendant, upon sufficient cause shown by affidavit, that such judgment was obtained fraudulently, with intent to defraud creditors, grant an order to stay all proceedings on such judgment, until the further order of the said court of common Powers of pleas; and that court shall have the like power to inquire into the consideration of such judgment, and to set aside the same, or to make any other order in the premises, as if the judgment had been originally rendered in that court. com. pleas. Proceedings on execution, Proceedings when justice a witness. When judg. ment of nonsuit. Judgment when there is $117. If an execution shall have been issued on such judgment, and the judgment be established, the officer having such execution, may proceed thereon to collect the amount of such judgment, in the same manner, as if the proceedings had not been stayed, and within such time as the court shall direct. $118. If, previous to joining issue in any cause, (except where the defendant shall have been arrested by warrant,) the defendant shall make affidavit, that the justice before whom the same is pending is a material witness for such defendant, without whose testimony he cannot safely proceed to the trial, judgment of discontinuance shall be entered, but without costs against either party. $119. Judgment of non-suit, with costs, shall be rendered against a plaintiff prosecuting a suit before a justice of the peace, in the following cases: 1. If he discontinue to withdraw his action: 2. If he fail to appear on the return of any process, within one hour after the same was returnable : 3. If after an adjournment, he fail to appear within one hour after the time to which the adjournment shall have been made: 4. If he become non-suited on the trial: 5. If he shall not appear on the coming in of the jury to hear their verdict. $ 120. Judgment for the defendant, with costs, shall be rendered, no cause of 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. action. (40) Laws of 1824, p. 291, § 12 & 13. $ 121. If upon the trial of the cause; or upon an ex parte hear- ART. 8. ing, in those cases where it may be had on the defendant's failing to When judgappear; a sum, in debt or damages, shall be found in favor of the plain- ment fo tiff, then judgment shall be rendered against the defendant for such debt or damages, and the costs. plaintiff. Joint debtors, S 122. If process shall have issued against two or more per- proceedings sons jointly indebted, and shall have been personally served upon ei- against. ther of the defendants, the defendant who may have been served with process, shall answer to the plaintiff; and the judgment, in such case, if rendered in favor of the plaintiff, shall be against all the defendants, in the same manner as if all had been served with process; but execution shall issue only in the manner herein after directed.11 judgment. ments to be $ 123. Such judgment shall be conclusive evidence of the liability Effect of of the defendant who was personally served with process in the suit, or who appeared therein; but against every other defendant, it shall be evidence only of the extent of the plaintiff's demand, after the liability of such defendant shall have been established by other evidence. $124. In cases where a plaintiff shall be non-suited, discontinue When judg or withdraw his action, and where judgment shall be confessed, and rendered. in all cases where a verdict shall be rendered, or the defendant shall be in custody at the time of hearing the cause, the justice shall forthwith render judgment, and enter the same in his docket. In all other cases, he shall render judgment, and enter the same in his docket, within four days after the cause shall have been submitted to him for his final decision.4 42 ties may re $ 125. When a balance shall be found in favor of a party, either When parby the verdict of a jury, or upon a hearing before the justice, exceed- mit excess. ing the sum for which the justice is authorised to give judgment, such party may remit and release the excess, and may take judgment for the residue. total amount. S 126. Whenever a judgment shall be rendered by a justice against Costs; their any party, unless herein otherwise provided, it shall be with the costs of the suit. But the whole amount of all the items of such costs, except charges for the attendance of witnesses from another county, shall not, in any case, exceed five dollars.13 of judgments. S 127. It shall be the duty of a justice of the peace, on the demand Transcripts of any person in whose favor he shall have rendered a judgment for above twenty-five dollars, exclusive of costs, to give a transcript of such judgment, together with the original bond of security for stay of execution, if there be such bond.44 liens on real S 128. It shall be the duty of the clerk of the county in which such To be filed; judgment shall have been obtained, to file such transcript and bond in estate. his office, and to enter and docket the judgment, in a book to be by him (41) Laws of 1824, p 291, § 15. (42) Ib. §3. (43) Ib. § 31. (44) Ib. § 20. |