her account or demand, or state the nature thereof as far forth as may be in his or her power, to the satisfaction of the assistant justice, before whom the cause is to be tried.

to

set off

de

On neglect,

cluded from

XCIII. And be it further enacted, That if the defendant in any Defendants action to be brought before any assistant justice by virtue of this their mands, if act, hath any account or demand against the plaintiff, he may plead any. and set off the same against the demand of the plaintiff; and if any defendant shall refuse or neglect so to do, such defendant shall for- to be preever thereafter, be precluded from having any action against the action thereplaintiff to recover the same or any part thereof: Provided always, Balance unThat where the balance found to be due to the defendant, shall ex-25 dollars. ceed twenty-five dollars, in such case the defendant shall not be precluded from recovering the same account or demand against the plaintiff, in any other court of record having cognizance thereof.(1)

for.

less exceeds

in action of

tifies on a

XCIV. And be it further enacted, That when in, any action of Proceedings trespass upon land or other real estate to be brought before trespass, any as- when desistant justice, any defendant shall justify on a plea of title, the de- fendant jusfendant shall commit such plea of justification to writing, and hav- plea of title. ing signed the same in the presence of such assistant justice, shall deliver such plea to the assistant justice, who shall then countersign the same, and deliver it to the plaintiff, and it shall and may be lawful to and for such plaintiff to commence and prosecute an action. for such trespass against such defendant, in the Court of Common Pleas, called the Mayor's Court of the city of New York, and if such plaintiff shall recover any damages in such action, the defendant shall be liable to pay to such plaintiff double costs; and in every trial to be had for such trespass, the plea signed by such defendant shall be conclusive evidence that the defendant relied on his title to justify such trespass; and every assistant justice, to whom a plea of justification shall be tendered, shall, before he shall receive such plea, exact from the defendant, together with one sufficient surety, a recognizance in the sum of fifty dollars, conditioned, that if such plaintiff shall commence a suit before the then next mayor's court. of the said city, for the recovery of damages for such trespass, such defendant shall appear and put in special bail in such mayor's court, within eight days after the first day of the then next term of the said court; and that in every case in which such plea shall be tendered, and the defendant shall not forthwith enter into such recognizance, the assistant justice shall proceed in the same manner as if such plea had not been tendered: Provided always, That it shall be competent for such defendant, notwithstanding the said plea of title, to show on the trial of any such case before the said mayor's court, (1) Amended, see act of 1817, chap. 21, p. 16.

joined either

demand a

jury.

Jury,

Justice

how

issue venire.

that the plaintiff had not possession of, or title to the premises, at the time such supposed trespass was committed.

After issue XCV. And be it further enacted, That in every action to be party may brought by virtue of this act, before any such assistant justice, it shall be lawful for either of the parties to the suit, or the attorney of either of them, after issue joined, and before the court shall proceed to inquire into the merits of the cause, to demand of the said court that such action be tried by jury, and upon such demand, the said assistant justice shall, in open court, nominate eighteen persons residing in the ward in which the cause is to be tried, and qualified to serve as jurors on trials in the Mayor's Court of the said city, and who are in no wise of kin to the plaintiff or defendant in the said suit, or interested therein; and the names of the said perimpanneled sons so nominated by the said assistant justice, shall be by him written on a panel, which panel shall be annexed to a venire, which the said assistant justice is hereby required to issue, directed to any constable or marshal.of the said city, commanding him to summon to any twelve of the persons named in the said panel, to be and appear before such assistant justice issuing such venire, at such time and place as shall be expressed in the said venire, to make a jury for the trial of the action between the parties mentioned in the said venire, which constable or marshal shall, at the return of the said venire, return a panel of the names of the jurors he shall so summon by virtue of the said venire; and the name of each person impanneled, shall be written on several and distinct pieces of paper, as nearly of one size as may be, and shall be delivered to the said Jury to be assistant justice, before whom such action is to be tried, by the said ballot. constable or marshal returning such panel, and shall, by the said constable or marshal be rolled up, all as near as may be, in one and the same manner, and put together in a box or some convenient thing, and on the trial of such cause, such assistant justice, or such indifferent person as he shall appoint for that purpose, shall draw out six of the said papers one after another, and if any of the persons whose names shall be so drawn, shall not appear, or shall be Challenges challenged and set aside, then such further number thereof shall be so drawn as shall make up the number of six, who do appear after all legal causes of challenge allowed by the said assistant justice; unless the parties agree that the said constable or marshal shall summon six men at his discretion; and the said six persons, so drawn and appearing, and approved by the court as indifferent and qualified, shall be the jury who shall try the cause, to each of whom the said assistant justice shall administer the following oath : "You do swear in the presence of Almighty God, that you will well and truly try the matter in difference between

selected by

allowed.

plaintiff, and

defendant, and a true verdict will Their oath. give according to evidence;" and after the said jury have taken the oath aforesaid, they shall sit together and hear the several proofs and allegations of the parties which shall be delivered in public in their presence; and to each of the witnesses on the said trial, the said assistant justice shall administer the following oath: "You do nesses. swear in the presence of Almighty God, that the evidence you shall give in this matter in difference between

plaintiff,

Oath of wit

stable

or

and defendant, shall be the truth, the whole truth, and nothing but the truth." And after hearing the proofs and allegations, the jury shall be kept together in some convenient place until they shall agree upon a verdict, and for which purpose a constable or marshal shall be sworn, and to whom the said assistant justice shall administer the following oath: "You do swear in the Oath of conpresence of Almighty God that you will, to the utmost of your marshal. ability, keep every person sworn on this inquest, together, in some private and convenient place; and will not suffer any person to speak to them, nor speak to them yourself, unless by order of the justice, unless it be to ask them whether they have agreed upon Justice to their verdict, until they have agreed upon their verdict." And give when the jurors have agreed upon their verdict, they shall deliver dict. the same to the assistant justice in the same court, who is hereby required to give judgment thereupon, and to award execution in manner hereafter directed: Provided always, That no oath of either Oath party or ex parte affidavit of any other person, shall be allowed or parte affidagiven in evidence in any such action, unless the parties agree to received allow of such evidence.

judg

ment on ver

of

party or ex

vit not to be

without consent.

jurors and

for non-at

ered.

XCVI. And be it further enacted, That every person summoned Penalties on and drawn as a juror, or subpoenaed as a witness, who shall not witnesses appear, or appearing shall refuse to serve or give evidence in such tendance. action, shall forfeit and pay for every such default or refusal, unless some reasonable cause be proved on oath, to the satisfaction of the court, such fine or fines, not exceeding the sum of ten dollars, nor less than sixty-two and a half cents, as the said court shall think reasonable to impose; and the said court is hereby authorized and How recov required to issue a warrant directed to any constable or marshal of the said city, commanding him to levy the same on the goods and chattels of the said offender, and for the want thereof to convey him or her to the jail or debtor's prison of the said city and county of New York, there to remain until he or she pay such fine, together with the costs attending the same; and the keeper of the said jail or prison is hereby commanded to keep such offender in safe custody, in such jail or prison, until such fine, together with the costs, shall be paid: Provided always, That no such fine or

fines shall be imposed, unless oath shall first have been made before the court, by some credible person, that such juror or witness, so in default, hath been lawfully summoned or subpoenaed as aforesaid; all and every of which said fines, when recovered, shall be How appro- delivered by the said court to the chamberlain of the said city, for the use of the poor thereof.

priated.

Form of conviction un

cise

XCVII. And be it further enacted, That all convictions to be had der the ex- before any assistant justice as aforesaid, for offences against the act, entitled "an act to lay a duty on strong liquors, and for regulating inns and taverns," shall be drawn up in the following mauner, viz.:

City of New York to wit: Be it remembered that on the day of

in the year of our Lord one thousand

A. B., of the city of New York, merchant, (or farmer or other addition as the case may require,) being an inn holder or tavern keeper, (if the case be so,) is this day convicted before C. D., one of the assistant justices of the said city, of having on the

day of

last, (or instant as the case may be,) at the

ward in the said city, sold by retail one quart (or other quantity) of rum (or other spirituous liquors) without having such permit, (or to be drank in his or her house, or out-house, yard or garden,) without having entered into such recognizance as is mentioned in the act, entitled "an act to lay a duty on strong liquors, and for regulating inns and taverns," or of having on the day of ward of the said city, sold one gill (or other quantity) of rum (or other strong liquor) an apprentice (or servant or slave) of

to

last, (or instant,) at the

know

space

ing or having reason to suspect or believe him (or her) to be such, without the consent of his (or her) master, (or mistress,) against the form of the act, entitled "an act to lay a duty on strong liquors, and for regulating inns and taverns," or of having for the of one month (or two or more months) refused to put up and keep such sign up as is required by the act, entitled "an act to lay a duty on strong liquors, and for regulating inns and taverns;" given under my hand and seal the day and year first above written; and every such conviction shall, within thirty days after it is made, be Convictions filed in the office of the clerk of the city and county of New York, in county there to remain as a record, and may be pleaded in bar to any other prosecution for the same offence.

to be filed in

clerk's office.

Costs,

how

to be award

cution how

XCVIII. And be it further enacted, That if the plaintiff, in any ed, and exe- action to be brought before any such assistant justice, shall be nonto be issued. suited or discontinue or withdraw his or her action without the consent of the defendant, then judgment shall be given against such

plaintiff for the costs recovered; or if he or she shall be found to be indebted to the defendant, then judgment shall be given against him or her for the debt or damages and costs, as the case may require, and whenever judgment shall be given against either plaintiff or defendant, the said court shall grant execution thereupon, directed to any one of the constables or marshals of the said city, commanding him to levy the debt, or damages and costs, of the goods and chattels of the person against whom such execution shall be granted, (his arms and accoutrements excepted,) and to bring the money at a certain time and place, therein to be mentioned, before the assistant justice who issued the execution, to render to the party who recovered the same; and if no goods or chattels can be found, or not sufficient to satisfy such execution, the party recovering the judgment may, from time to time, renew such execution, or have further execution against the goods and chattels of the party against whom such judgment is recovered, or may bring an action of debt thereon, or if the party against whom such judgment is recovered be a freeholder within this state, or being a person not having a family therein, and the same be proved to the satisfaction of the assistant justice, by the oath of the party in whose favor the execution shall issue, or by the oath of such witness or witnesses as the assistant justice shall require, or if the judgment be against any person whatever for any penalty incurred under the act, entitled "an act to lay a duty on strong liquors, and for regulating inns and taverns," then every execution to be issued as aforesaid, may further command, that if sufficient goods and chattels cannot be found to satisfy the debt, or damages and costs as aforesaid, that the officer take the body of the person against whom such execution shall be granted, and him or her to convey to the jail or debtor's prison of the said city and county: Provided, always, That no such proof of any such party, against whom judgment shall be given, being a freeholder, or not having a family, shall be required by any such assistant justice, unless such party shall, at the time of the trial of any such action, or some time before the issuing execution, not exceeding four days after such trial, claim and allege his exemption from any such execution against his or her body: And further, That no execution of any judgment given by such assistant justice, by virtue of this act, shall issue against any freeholder or inhabitant having a family, in less than thirty days after giving the judgment, unless the person in whose favor judgment shall be given, shall make it appear to the satisfaction of the said assistant justice, on his own oath or the oath of some other person, that such plaintiff will be in danger of losing the debt or damages if such delay be allowed; in which case the said assistant justice shall issue execution immediately, as herein before directed, unless the party