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ness, he may adjourn the trial without the consent of either party, as follows:

1. Where a party, who is not a resident of the county, is in attendance; or where the defendant is in attendance under arrest; the adjournment not to exceed twenty-four hours; and the defendant, if under arrest, to continue in custody:

2. In other cases, not to exceed five days, unless by consent of parties.

If the trial be not adjourned, it must take place immediately upon the return of the summons.

§ 1103. The trial may be adjourned by consent, or upon application of either party, without the consent of the other, for a period not exceeding eight days, as follows:

1. The party asking the adjournment must, if required by his adversary, prove by his own oath or otherwise, that he cannot, for want of material testimony, which he expects to procure, safely proceed to trial:

2. If the application be on the part of the plaintiff, and the defendant be under arrest, an adjournment for more than twenty-four hours, discharges the defendant from custody, but the action may proceed notwithstanding: and the defendant shall be subject to arrest on the execution in the same manner as if he had not been so discharged:

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3. If the application be on the part of a defendant under arrest, before it can be granted, he must execute an undertaking, with one or more sufficient sureties to be approved by the justice, as follows: If the arrest be for a cause specified in the first four subdivisions of section 1071, or in the sixth, the undertaking must be to the effect, that he will appear at the return day, and not depart from the court until duly discharged, or until after the trial and judgment, and after a reasonable opportunity to arrest him on execution issued upon the judgment, if any be obtained against him. If the arrest be for a cause specified in subdivision 5, of that section, the undertaking must be to the effect, that no part of the property of the defendant, liable to be taken on execution, shall be removed, secreted, assigned, or otherwise disposed of, except for the necessary support, for the time, of himself and family, until the plaintiff's demand be satisfied, or until the expiration of ten days after the judgment, if any be obtained against him in the action:

4. Either party applying for an adjournment, must also, if required by the adverse party, consent that the testimony of any witnesses of such adverse party who are in attendance, be then taken by deposition before the justice, which must accordingly be done; and the testimony so taken may be read on the trial with the same effect, and subject to the same objections, as if the witness were produced.

The various provisions for adjournment in the justice's act, are embodied in this section and the two following, with some

modification. Under the existing law, an adjournment upon joining the issue, is a matter of course; this section requires that cause for an adjournment should be shown, when moved for, by a party at any time, and imposes the further condition, that any witness on the adverse side may be sworn and examined and that his deposition mny afterwards be read on the trial.

§ 1104. An adjournment may be had, either at the time of joining the issue, or at any subsequent time to which the cause may stand adjourned, on application of either party, for a period longer than eight days, but not to exceed ninety days from the time of the return of the summons, upon compliance with the provisions of the last section, and upon proof, by the oath of the party or otherwise, to the satisfaction of the justice, that such party cannot be ready for trial before the time to which he desires an adjournment, for the want of material evidence, describing it, that the delay has not been made necessary by any act or negligence on his part, since the action was commenced, and that he expects to procure the evidence at the time stated by him.

§ 1105. If the plaintiff fail to appear at the return day of the summons and make his complaint, the action must be dismissed. If the defendant fail to appear at the return day of the summons, or if either party fail, to attend at a day to which the trial has been adjourned, or fail to make the necessary pleading or proof on his part, the case may nevertheless proceed at the request of the adverse party; and judgment must be given in conformity with the pleadings and proofs.

§ 1106. A trial by jury must be demanded at the time of joining issue; and is waived, if neither party then demand it. When demanded, the trial of the case must be adjourned, until a time and place fixed for the return of the jury. If neither party desire an adjournment, the time and place must be determined by the justice, and must be on the same day or within the next two days. The jury must be immediately drawn and summoned, and a return thereof made as prescribed in sections 317, 318, and 319.

Important changes are made in relation to a jury trial in justices' courts:

1. The demand of a jury trial must be made at the time issue is joined:

2. The jury fees are increased to twenty-five cents each, for all who are summoned and attend, whether sworn or not, and must be deposited with the justice at the time a jury is demanded:

3. The jury is drawn from a jury-box, and summoned as in the higher courts, and not left to be chosen by a constable, as heretofore, often to the great scandal of the institution.

4. If, upon the attendance of a jury, the cause is adjourned, the jury fees for attendance must be paid by the party moving the adjournment, and they must again attend at the time to which the trial is adjourned.

These provisions, it is believed, will prove salutary in securing good juries, and in preventing the unnecessary call of juries in trifling cases. Provision is also made for determining the competency of a juror; and the causes of challenge, which are defined in the Code, apply to justices' courts as well as others.

§ 1107. At the time appointed for the trial, and on the return of the order, if the trial be not further ad

journed, and if adjourned, then at the time to which the trial is adjourned, the justice must proceed to draw from the jurors summoned the names of persons to constitute the jury for the trial of the issue. Six jurors constitute a jury, but, by consent of parties, a less number may act.

§ 1108. If a sufficient number of competent and indifferent jurors do not attend, the justice must direct others to be summoned by a constable, from the vicinity, sufficient to complete the jury.

§ 1109. The ballots containing names of jurors not summoned, if any, and of those summoned, but not drawn, must be returned by the justice to the drawn jury box, except that such of them as contain the names of persons, not liable to serve as jurors, must be destroyed. The ballots containing the names of the jurors, who serve, must not be returned to the same box from which they were taken, until all the names have been drawn out. As often as that happens, the whole number must be returned to the undrawn jury box, to be drawn as in the first instance.

§ 1110. Before a party can be entitled to a jury, he must deposit with the justice the sum of three dollars, for jury fees, from which the justice must refund to the party the fees of all jurors who do not attend, and those not refunded must be included in the judgment as part of the costs, in case the party calling the jury recover judgment.

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