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An executor plaintiff, it seems, is not liable to costs for not Executor, going to trial, unless he has made wilful default."

instanter.

Attachments

When the trial of a cause is put off, on motion of the de- Costs paid fendant, on payment of costs, they ought to be paid instanter, and it is the duty of the defendant to seek the plaintiff and tender the costs without waiting for a formal demand of them." But the plaintiff has an election to wait the event of the suit, and have all his costs taxed together: or he may resort to an attachment; but if he does so, he must first have his costs taxed on proper notice and service on the attorney in the suit, as in other cases. Besides these remedies, the court, on motion, will grant a rule that the defendant pay the costs. Where a party is entitled to the costs of a circuit, but neglects to apply at the next term for a rule to enforce the payment of them, they must abide the event of the suit.101

8

To entitle the plaintiff to an attachment, there must have been a demand of the costs; and the demand may be made of the attorney as well as of the defendant personally, but not of the counsel in the cause.102 On refusal of payment, the plaintiff is entitled to an attachment against the defendant, in the first instance, without a previous notice.10

court,
costs gene".
rally allow

Supreme court costs will be allowed for putting off a cause Supreme at the circuit, unless it appear from the record that the plaintiff cannot, in any event, recover two hundred and fifty dollars ed." besides costs.11

As the payment of costs is the condition on which the trial of the cause is put off, it seems, that if they be not paid instanter, the plaintiff may proceed with the trial.12

5 Barnes. 133. but see 2 New Rep. C. P. 247. 2 Archb. Pract. 146. 242.

19 Johns. Rep. 270. and see 1 Johns. Cas. 396.

72 Johns. Cas. 114. 1 Wend. Rep. 83.

101 2 Wendell. Rep. 286.

919 Johns. Rep. 270.
102 2 Johns. Cas. 114.
10 2 Johns. Cas. 115.

11 Mather & Thorne vs. Rogers,
August Term 1811. cited 2 Dunlp.
Pract. 1219.

12 2 Johns. Cas. 114. 19 Johns. Rep. 270.

SECTION III.

OF THE VENIRE FOR FOREIGN JURORS, AND OF JURORS, AND THE
MODE IN WHICH THEY ARE DRAWN AND SUMMONED.

Trials by jury.

By a statutory provision, "all issues of fact joined in any court, proceeding according to the course of the common law, shall be tried by a jury, except in those cases where a reference shall be ordered; and trials by battle and by the grand assize, and all other modes of trial, except by a jury or by referees, are for ever abolished."

9713

Venire for foreign jurors.] It was formerly necessary for the plaintiff, in all cases, to issue process to the sheriff of the county in which the venue was laid, commanding him to summon a jury to try the cause. This process, in the first instance, Venire abo- was always a venire facias. But it is now provided in the revised laws, that "it shall not be necessary in any case to issue or award any venire for the summoning of jurors to attend any circuit court or sittings, court of common pleas, or mayor's court, except when a foreign jury shall be ordered."

hished except in certain

cases.

Sheriff to give notice.

Clerk to

draw names.

9914

In the following sections it is required, that "whenever a foreign jury shall be ordered by any court, a venire for that purpose shall issue to the sheriff of the proper county, who shall give notice of the same to the clerk of such county, at least twenty days before the return day of such venire.15 The clerk to whom such notice shall have been given, shall draw the names of twenty-four persons from the lists returned to him by

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the town officers, in the same manner as hereinafter directed,101 with respect to ordinary juries, and shall deliver a certified list of the names so drawn to such sheriff, who shall summon them as in other cases.' 9916

A foreign jury is a jury from another, or a foreign county, and will be granted where there is reason to believe that there cannot be an impartial trial by a jury of the county in which the venue is laid. The expense must be paid by the party applying.17

form, &c.

The venire is a judicial writ directed to the sheriff, and com- venire, manding him to cause to come before the justices of the supreme court, on a certain day therein mentioned, twelve free and lawful men, possessed of the requisite qualifications.. The form of the venire was formerly prescribed by statute,1 but there is no similar provision in the revised statutes.19

Jury lists and qualifications of jurors.] On the first Monday of July 1830, and on the first Monday in July, in each third year thereafter, it is made the duty, by statute, of the supervisor, town clerk and assessors of the several towns in this state, to hold a meeting for the purpose of making a list of persons to serve as jurors, for the next three years. The place of meeting is to be appointed by the supervisor, or in case of his absence, or of a vacancy in his office, by the town clerk 20. In making out the list of jurors, a selection must be Selection to made from the names of those assessed, on the last assessment rolls of the town, of such persons as are male inhabitants of the town, not exempt from serving on juries, of the age of twenty-one years or upwards and under sixty years of age, in the possession of their natural faculties, and not infirm or decrepit, well informed, free from all legal exceptions, of fair

101 See post.

16 Ib. s. 11.
173 Caines' Rep. 103.
18 1 R. L. 327. s. 9.

19 See further 1 Dunlap. Pract. 592 to 594.

20 R. St. P. 3. Ch. 7. T. 4. s. 12. 17. 18. 19. Vol. 2. p. 411. 412.

be made

from assessment rolls.

perty, $250,

character, approved integrity, and of sound judgment. Besides these qualifications, the persons thus selected, must at the time Personal pro-be assessed for personal property, belonging to them in their own right, to the amount of two hundred and fifty dollars, or they must be possessed of a freehold estate in real property in the county, belonging to them in their own right, or in the or freehold, right of their wives, to the value of one hundred and fifty dollars.21

$150.

Land on con

tract in certain cases.

Duty of county clerk.

But it is provided that every person residing in either of the counties of Niagara, Erie, Chautauque, Cattaraugus, Allegany, Genesee, Orleans, Monroe, Livingston, Jefferson, Lewis, St. Lawrence and Franklin, who does not possess either of property qualifications last specified, but is qualified in all other respects, and who shall have been assessed, on the last assessment roll of the town, for land in his possession, which he holds under contract for the purchase thereof, upon which improvements shall have been made to the value of one hundred and fifty dollars, and who shall own such improvements, shall be deemed qualified to serve as a juror: and that the town officers authorised to select and return jurors, may take the names of such persons.22

Duplicate lists of the persons so selected, with their additions and places of residence, must be made out and signed by the town officers so assembled, or the major part of them; and within ten days thereafter, one of these lists must be transmitted to the county clerk, and the other filed with the town clerk.101 It is the duty of the clerk of the county, on the first Monday of August, after the receipt of the list so transmitted to him, to write the names therein contained with their additions and places of residence, on separate pieces of paper, and to deposit the same in a box to be provided and kept for that purpose.* Upon receiving a new list of jurors, at the end of every three years, the county clerk, must on the day appointed for deposit

21 Ib. s. 13. p. 411.
22 Ib. s. 14.

101 Ib. s. 15. p. 412.
23 Ib. s. 16.

York;
wards,

ing the names in the box kept by him, and before so depositing the names contained in the new list, destroy the old ballots.24 In the city and county of New York, each ward, is for the City of New purpose of returning jurors deemed a town; and it is the duty ww of the common council of the city, to provide by ordinance, the manner in which and how often the selection shall be made, and the officers and persons by whom it shall be conducted : but in other respects the provisions already cited, respecting the qualifications of the persons to be selected as jurors, the return of the lists to the county clerk, the deposit of the names of the persons returned, and the destruction of the former names upon the coming in of a new return, are equally applicable.25 In the cities of Albany, Troy, Hudson and Schenec- Albany, tady, the wards are likewise, for the same purpose as in the son, and city and county of New York, considered towns; and in these tady. cities the supervisors and assessors of the wards execute the duties enjoined upon the supervisors, assessors and town clerk in the several towns in the state; except that a duplicate of the returns of jurors made by them, must be filed in the office of the clerk of the city, in which their ward is situated.26

Troy, Hud

Schenec

names

Drawing and summoning jurors.] Fourteen days before the holding of the circuit or sittings, it is the duty of the clerk of the county, in which the court is to be held, to draw from the box containing the list of jurors, the names of thirty-six Thirty-six persons to serve as jurors at such court, and any number in drawn. addition thereto, that shall have been ordered according to law.27 And any " circuit judge” is authorised" whenever in Additional his opinion, more than thirty-six jurors shall be required to at- number, how

24

Ib. s. 20. 25 Ib. s. 21. 22.

26 Ib. s. 23. p. 413.

27 R. St. P. 3. Ch. 7. T. 4. s. 24. Vol. 2. p. 413. The same rules with respect to the drawing and

summoning of jurors, are applicable to courts of common pleas

and mayors' courts, to special
courts of oyer and terminer, where
no circuit is appointed to be held
at the same time, and in the city
and county of New York, to the
superior court, and court of general
sessions.

ordered.

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