cause, to be brought in the proper court, as prescribed in the next section, the defendant will, within twenty days after the deposit, give a written admission of the service thereof Where the defendant was arrested in the action before the justice, the undertaking must further provide, that he will, at all times, render himself amenable to any mandate, which may be issued to enforce a final judgment in the action so to be brought. If the defendant fails to comply with the undertaking, the sureties are liable thereupon, to an amount not exceeding two hundred dollars. § 2953. In what court new action to be brought. The court in which a new action is to be brought, a prescribed in the last section, is the supreme court, or the county court of the justice's county, at the plaintiff's election; except that, where the justice is a justice of the peace of the city of Buffalo, it is the superior court of Buffalo. § 2954. When action before justice to be discontinued. Upon the delivery of the undertaking to the justice, the action before him is discontinued, and each party must pay his own costs. The costs so paid by either party must be allowed to him, if he recovers costs in the new action, to be brought as prescribed in the last two sections. If the plaintiff fails to deposit with the justice a summons and complaint in the new action, before the expiration of twenty days after the delivery of the undertaking, the defendant may maintain an action against the plaintiff to recover his costs before the justice. § 2955. Effect of failure to give undertaking. If the undertaking is not delivered to the justice, he has jurisdiction of the action, and must proceed therein; and the defendant is precluded, in his defence, from drawing the title in question. § 2956. When title comes in question on plaintiff's own showing. If, however, it appears, upon the trial, from the plaintiff's own showing, that the title to real property is in question, and the title is disputed by the defendant, the justice must dismiss the complaint, with costs, and render judgment against the plaintiff accordingly. § 2957. Pleadings in new action; undertaking before justice, when applicable. In the new action, to be brought after an action before a justice is discontinued, by the delivery of an answer and an undertaking, as prescribed in the last six sections of this act, the plaintiff must complain for the same cause of action only, upon which he relied before the justice; and the defendant's answer must set up the same defence only, which he made before the justice. If the action is to recover a chattel, which was replevied, in the justice's court, each undertaking given in the justice's court, continues to be valid in, and is applicable to the new action. $2958. Answer of title as to one of several causes of action. Where, in an action before a justice, the plaintiff has two or more causes of action, and the defence, that the title to real property will come in question, is interposed as to one or more, but not to all of them; the defendant may deliver an answer and undertaking as prescribed in sections 2951 and 2952 of this act, with respect to the cause or causes of action only, in which title will so come in question. Whereupon the justice must discontinue the action as to those causes of action only; the plaintiff may commence a new action therefor in the proper court; and the original action must proceed as to the other causes. TITLE IV. Proceedings between the joinder of issue and the trial. ARTICLE 1. Adjournments. 2. Compelling the attendance of a witness. 3. Commission to take testimony. ARTICLE FIRST. ADJOURNMENTS. SECTION 2959. Adjournment by justice. 2960. Adjournment on application of plaintiff. 2962. Id.; undertaking thereupon. 2963. Undertaking to procure discharge of defendant from custody. 2965. Subsequent adjournments. 2966. Justice may impose conditions upon adjournment. 2967. Adjournment when warrant to attach absent witness is issued. § 2959. Adjournment by justice. At the time of the return of a summons, or of the joinder of issue without process, but at no other time, the justice may, in his discretion and upon his own motion, adjourn the trial of the action not more than eight days, unless the defendant has been arrested; in which case, no such adjournment shall be made. § 2960. Adjournment on application of plaintiff At the time of the return of a summons, or of the joinder of issue without process, the justice must, upon the application of the plaintiff, adjourn the trial of the action, not more than eight days, to a time fixed by the justice. But such an adjournment shall not be granted unless the plaintiff or his attorney, if required by the defendant, makes oath that the plaintiff cannot, for want of some material testimony or witness, specified by him, safely proceed to trial. § 2961. Adjournment on application of defendant. At the time of the joinder of issue, the justice must, upon the application of the defendant, adjourn the trial of the action, upon his complying with the following requirements: 1. The defendant or his attorney must, if required by the plaintiff, or by the justice, make oath that he verily believes that the defendant has a good defence to the action, and that he cannot safely proceed to trial, for want of some material testimony or witness, specified by him. 2. If required by the plaintiff, and the defendant has not been arrested in the action, an undertaking must be given to the plaintiff in behalf of the defendant, as prescribed in the next section. But such an undertaking need not be given, where the action is to recover a chattel. Such an adjournment must be for such a reasonable time, fixed by the justice, as will enable the defendant to procure the testimony or witness. § 2962. Id.; undertaking thereupon. The undertaking prescribed in the last section must be executed by one or more sureties, approved by the justice; and must be to the effect that, if the plaintiff recovers judgment in the action; and if, before the expiration of ten days after the plaintiff becomes entitled to an execution upon the judgment, the defendant removes, secretes, assigns, or in any way disposes of any part of his property, liable to levy and sale by virtue of an execution, except for the necessary support of himself and his family, and if an execution upon the judgment is returned wholly or partly unsatisfied; the sureties will, upon demand, pay to the plaintiff the sum due upon the judgment. § 2963. Undertaking to procure discharge of defendant from custody. Where the defendant has been arrested, the trial must be adjourned upon his application, upon the same terms, and in the same manner, as where he has not been arrested'; except that the undertaking prescribed in the last section need not be given. A defendant, who procures such an adjournment, must continue, during the time of adjournment, in the custody of the constable; unless he gives an undertaking to the plaintiff, with one or more sureties, approved by the justice, to the effect that, if the plaintiff recovers judgment in the action; and if an execution is issued thereupon against the person of the defendant, within ten days after the plaintiff is entitled to the same; and if a return is made thereto, on or after the return day thereof, that the defendant cannot be found; the sureties will pay to the plaintiff the amount due upon the judgment. If such an undertaking is given, the defendant must be discharged from custody. § 2964. When defendant to be discharged. If the trial of an action, in which the defendant has been arrested, is adjourned with the consent of both parties, or upon the application of the plaintiff, the defendant must be discharged from custody. § 2965. Subsequent adjournments. The justice must, upon the application of the defendant, grant a second or subsequent adjournment of the trial of the action, upon the defendant's giving security, if required, as prescribed in the foregoing provisions of this article, where he applies for a first adjournment; and upon his proving, by his own oath or otherwise, to the satisfaction of the justice, that he cannot safely proceed to trial for want of some material testimony or witness; and that he has used due diligence to obtain the testimony or witness. But if the defendant has given an undertaking upon a former adjournment, a new undertaking need not be given, unless it is required by the justice, or by the sureties in the former undertaking. § 2966. Justice may impose conditions upon adjournment. Upon granting the defendant's application for an adjournment, where the trial has been once adjourned, or where the plaintiff is a non-resident of the county, the justice may, in his discretion, upon the plaintiff's application, direct that any witness on the part of the plaintiff, who is in attendance be then examined under oath before the justice. Thereupon the testimony of the witness must be reduced to writing certified by the justice, and retained by him; to be read upon the trial, with the same effect, and subject to the same objections, as if it was then given orally by the witness. § 2967. Adjournment when warrant to attach absent witness is issued. Where, upon a trial, a warrant of attachment is issued to compel the attendance of a witness, who has failed to appear in obedience to a subpœna, the justice may, in his discretion, adjourn the trial, for such a time as he deems necessary for the return of the warrant, not exceeding five days. § 2968. Adjournment not to exceed ninety days. The trial of an action shall not be adjourned to a time beyond ninety days from the joinder of issue, without the consent of both parties, except in one of the following cases: 1. Where a venire has been duly issued, but a jury has not been procured, so that it is necessary to issue a new venire, or to summon one or more talesmen, the trial may be adjourned, not more than two days beyond the ninety days, in order to enable a jury to be procured. 2. Where a jury has not been able to agree upon a verdict and is discharged, a trial may be adjourned a sufficient time beyond the ninety days to enable a new jury to be procured, as prescribed in title fifth of this chapter. 3. Where a warrant of attachment has been issued to compel the attendance of a witness, as prescribed in the last section, or a warrant has been issued to commit a recusant witness, as prescribed in title fifth of this chapter, an adjournment made thereupon, as prescribed by law, is not deemed a part of the ninety days. ARTICLE SECOND. COMPELLING THE ATTENDANCE OF A WITNESS. SECTION 2969. When justice may issue subpœna. 2970. Subpœna; how served. 2971. Warrant of attachment against defaulting witness. 2972. Id.; how executed; fees thereupon. 2973. Id.; when witness is in adjoining county. 2974. Fine for refusing to attend, or to testify. 2975. Id.; how imposed. 2976. Minute of conviction. 2977. Execution thereupon. 2978. Money collected; how applied. 2979. Defaulting witness liable for damages. § 2969. When justice may issue subpoena. A justice of the peace may issue a subpoena to compel a witness to attend, in the county where the justice resides, or in an adjoining county, but not otherwise, for the purpose of testifying upon the trial of an action, pending before himself, or before another justice. The subpoena may require the witness, except as otherwise expressly prescribed by law, to bring with him any book or paper, relating to the merits of the action. But a justice shall not issue a subpoena to compel the attendance of a witness before another justice, unless the person applying therefor proves, by his own oath, or the oath of another person, that an action is actually pending before the other justice. Skin 590. Subpoena; how served. A subpoena may be served by a con 297 stable, or by any other person. It must be served by reading it, or stating its contents, to the witness, and by paying or tendering to him his lawful fee for one day's attendance as a witness. Where it is served by a constable, his return thereto, stating the manner of service and the sum paid, is presumptive evidence of the facts therein stated. § 2971. Warrant of attachment against defaulting witness. Where it is made to appear, to the satisfaction of the justice, by affidavit or other proof, that a person, duly subpoenaed to appear before him in an action, has refused or neglected to attend as a witness in obedience to the subpœna; and no just cause for the neglect or refusal is shown to exist; and the party, in whose behalf the witness was subpoenaed, or his attorney, makes oath that the testimony of the witness is material; the justice must issue a warrant of attachment, directed generally to any constable of the county, for the purpose of compelling the attendance of the witness. § 2972. Id.; how executed; fees thereupon. Such a warrant of attachment must be executed in the same manner as an order of arrest. The fees of the justice and constable for issuing and serving it, must be paid by the person against whom it is issued, unless he shows a reasonable excuse, to the satisfaction of the justice, for his omission to attend; in which case, the party procuring the warrant must pay them, and, if he recovers costs, the amount thereof must be allowed to him as part of his costs. § 2973. Id.; when witness is in adjoining county. Where the delinquent witness is within an adjoining county, the constable, to whom the warrant of attachment is directed, may arrest the witness in that county, and bring him before the justice. The constable, while he is within the adjoining county for that purpose, has all the powers of a constable of that county, with respect to the warrant so issued to him. § 2974. Fine for refusing to attend, or to testify. A person, duly subpœnaed as a witness, who, without a reasonable excuse, proved by his oath or the oath of another person, fails to attend; or, attending, refuses to testify; must be fined, by the justice before whom the action is pending, for each non-attendance or refusal, such a sum, not less than one dollar nor more than ten dollars, as the justice thinks it reasonable to impose upon him, as a fine therefor. § 2975. Id.; how imposed. The fine may be summarily imposed by the justice, upon the application of the party in whose behalf the witness was subpoenaed, at any time during the trial, when the defaulting witness is present, and has an opportunity to be heard. If it is not imposed during the trial, the justice, at any time within five days after judgment is rendered, must, upon the application of the party, issue a warrant, directed genorally to any constable of the county, commanding him to arrest the defaulting witness, and to bring him before the justice, at a time and place therein specified, the time to be not more than twelve days after issuing the warrant, to show cause why a fine should not be imposed upon him. § 2976. Minute of conviction. The justice imposing the fine must enter in his docket-book a minute of the conviction, of the cause thereof, of the amount of the fine, and of the costs. The minute is deemed a judgment against the delinquent, in favor of the officer to whom fines are directed to be paid, by section 2875 of this act. $2977. Execution thereupon. If the whole amount of the fine and costs is not forthwith paid to the justice, he must issue an execution, directed generally to any constable of the county, commanding the constable to collect the sum remaining unpaid, of the goods and chattels of the delinquent, within the county, and, for want thereof, to take him and convey him to the jail of the county, there to remain until he pays that sum, not exceed ing thirty days. Upon the delinquent being committed to jail, the keeper thereof must keep him in close custody therein, until he is entitled to a discharge, as specified in the execution. § 2978. Money collected; how applied. The money collected by virtue of the execution, must be forthwith paid by the constable to the justice. The justice must, within ten days after he receives a fine, or any part thereof, from the constable or the delinquent, pay the money to the officer to whom the fines are directed to be paid, by section 2875 of this act, for the use of the poor. § 2979. Defaulting witness liable for damages. A person, subpoenaed as prescribed in this article, who neglects or refuses to obey the subpoena, or |