(substituting the word judge in place of the word court,) are applicable thereto. ARTICLE X. MANNER OF RETURNING A SPECIAL TRIAL JURY. SECTION 327. Cases in which special jury may be had. 328. Five days notice of application. 329. Manner of drawing special jury. 330. When clerk is interested, special jury, how drawn. 332. To be formed in same manner as other juries. § 327. A special jury may be ordered, on motion, by the supreme court, the superior court or court of common pleas of the city of New-York, or a county, city or surrogate's court, for the trial of a question of fact in a civil action or in a special proceeding of a civil nature, when the importance or intricacy of the case requires it, or a fair and impartial trial cannot otherwise be had. § 328. The party obtaining the order must give notice of at least five days, of the time when he will attend before the county clerk, for the purpose of selecting the names of persons to form the jury. § 329. At the time appointed, the county clerk must attend at his office, with the list of trial jurors of the county, and publicly select the persons to form the jury in the following manner: 1. He must select from the trial jury list, the names of forty-eight persons, indifferent between the parties, and in his judgment best qualified to try the question: 2. The parties or their attorneys, must then, alter nately, commencing with the party who obtained the order, strike out one of the names of the persons selected, until each party shall have stricken out twelve names: 3. If either party fail to attend, or neglect to strike out twelve names, as provided in the last subdivision, the clerk must do so for him: 4. The clerk must thereupon deliver to the sheriff, a panel of the twenty-four persons not stricken out, and must certify that they are the persons selected to form the special jury. § 330. If, upon the motion for a special jury, it appear that the clerk is a party to, or interested in the action or proceeding, or is related to either of the parties thereto, by consanguinity or affinity within the third degree, or for any other cause is not impartial between the parties, the court must appoint two impartial persons to select the jury, who must perform the duties imposed upon the clerk by the last section. § 331. The sheriff must summon the persons whose names are contained on the panel delivered to him, as provided in section 271, and make return thereof as provided in section 272. § 332. The jury must be formed from the persons summoned and appearing, in the manner prescribed by this code in respect to other jurors; and the court has the same power to fine, excuse or discharge any of them, as in other cases. CHAPTER II. REFEREES. SECTION 333. Definition of a referee. 334. Definition of a reference. 335. Reference, when ordered on agreement of parties. 336. When ordered without agreement. 337. In what courts. 338. To whom ordered. 339. To whom cause cannot be referred, when reference made by the court or judge. § 333. A referee is a person appointed by the court, or a judicial officer, 1. To try an issue of law or of fact in a civil action, and report a judgment thereon: 2. To ascertain any other fact in a civil action or in a special proceeding of a civil nature, when necessary for the information of the court, and report the fact either with or without his opinion thereon: 3. To execute an order or judgment. See the code, as amend. d at the last session, sec. 270,271, 272, 273, and the act to facilitate the determination of existing suits, sec. 3, 4, 5, 6. § 334. The appointment of a referee, is denominated a reference. § 335. Upon the agreement of the parties to a civil action or a proceeding of a civil nature, filed with the clerk or entered upon the minutes, a reference may be ordered, 1. To try any or all of the issues in a civil action, whether of fact or of law, (except an issue of fact when the action is for a divorce dissolving the marriage contract,) and to report a judgment thereon: 2. To hear and determine a suit pending in the supreme court, before the first day of July, 1848, on what was then known as the equity side of that court, or any issue therein, whether of fact or of law, or both, (except an issue of fact when the suit is for a divorce dissolving the marriage contract,) or to report facts therein: or, 3. To execute a judgment or order, in an action or suit embraced in this section, except when an execution is the appropriate remedy, as provided in this code. 4. To try an issue or ascertain a fact, in a special proceeding of a civil nature. § 336. When the parties do not consent, the court may, upon the application of either, or of its own motion, direct a reference in the following cases: 1. When the trial of an issue of fact requires the examination of a long account on either side; in which case, the referees may be directed to hear and decide the whole issue, or to report upon any specific question of fact involved therein; 2. When the taking of an account is necessary for the information of the court, before judgment, or for carrying a judgment or order into effect: 3. When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of the action: or 4. When it is necessary for the information of the court, in a special proceeding of a civil nature. § 337. A reference may be ordered, in a civil action or in a special proceeding of a civil nature, in any court except a justice's court or the marine court of the city. of New-York. It may be so ordered at a special or trial term or circuit, or by a judge of the cout, but by no other officer. $338. A reference may be ordered to any person or persons, not exceeding three, agreed upon by the parties, If the parties do not agree, the court or judge, must appoint one or more referees, not exceeding three, who reside in the county in which the action or proceeding is triable. § 339. When the appointment of referees is made by the court or a judge, the referee must be, 1. Qualified as a juror, as provided in section 251: 2. Competent as a juror between the parties: or 3. Not related, by consanguinity or affinity within the third degree, to the judge by whom the court is held, or the order made, or to one who is interested or connected as a partner with a person so related. |