Discharge of jury. of those who shall appear, it shall be the duty of the officer SEC. 43. Whenever a justice shall be satisfied that a 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. Penalty for nonattedance of 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. 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. suit. 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. 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. Proceedings when verdict is SEC. 49. It shall be lawful for the justice before whom 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. Notice of new trial to opposite party. 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. SEC. 51. Upon the verdict being delivered to justice, and before judgment being rendered thereon, the Juror's fees taxed against the each losing party. Bill of excep tions. 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 costs when to be prejudice to a new action, may be entered with costs in the entered. following cases: Judgment of dismissal with Actions when to be dismissed. Judgment when to be set aside. 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. SEC. 56. Upon a verdict the justice must immediately 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. Immediate judgment in cases t attachment. In other cases when to be rendered. When either party may remit excess of dues be risdiction. SLC. 57. When the amount due to either party exceeds the sum for which the justice is authorized to enter judgment, yd 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. When otherwise. 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. Amount of ecsts when offer is not accepted. Mutual judg ments set off. When transcript to be prodrned. Justice to make Mtr, 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 judg ment against which the set-off is proposed may be entered. 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. 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 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. to balance judg ments. |