shall have conscientious scruples against taking an oath, he or she shall be admitted instead of taking an oath, to make his or her solemn affirmation or declaration in the following form, to wit: "You do solemnly, sincerely, and truly declare and affirm;" which solemn affirmation or declaration shall be equally valid, as if such person had taken an oath in the usual form: and every person guilty of falsely and corruptly declaring as aforesaid, shall incur and suffer the like pains and penalties as are, or shall be inflicted, on persons convicted of wilful and corrupt perjury."

The oaths to witnesses, jurors, &c., are to be administered by the justice before whom the trial is pending, and no other justice, or other officer, has any authority to administer them. The justice himself, if objected to, cannot thereon be sworn as a witness. 1 Johns. Rep., 520. But if sworn without objection, no advantage can afterwards be taken of it. 8 Johns. Rep., 470. 12 Johns. Rep., 296.

When a witness has been sworn, he is first to be examined by the party who calls him, and he has in general a right to go through with his examination before the other party puts any question to him. The witness may then be cross-examined by the other party, and afterwards the party who first called him may re-examine him, and so alternately until both parties have put to him all questions that they wish to. Phil. Ev., 221.

In strictness, the party calling a witness is bound to finish his questions on the examination in chief, then the defendant must do the same on cross-examination, and the witness can be re-examined only to cut down or explain matter which comes out on the cross-examination.

After the evidence is closed, the parties, by themselves or counsel, make such observations to the justice or jury as are applicable to their case. The party holding the affirmative to close the argument.

The re-calling of a witness, after his examination has been closed, is a matter of discretion in the court. 2 Scam. Rep.,

494.

After the evidence has been closed, and even after the cause has been summed up, the justice may, in his discretion, permit further evidence to be given. 7 Johns. Rep., 306. 4 Cowen's Rep., 450. 6 Wend. Rep., 268.

It is discretionary with a court to hear evidence after the argument of a cause is opened by counsel. This is at all times and before all courts matter of discretion, and before justices of the peace much more ought that discretion to be indulged. Breese Rep., 35.

But not, it would seem, at the request of either party after the cause has been finally submitted to the justice or jury. 2 Johns. Cas., 319. 4 Binney Rep., 488.

After a juror is sworn, he may not leave the court until the evidence is given for any cause whatever, without leave of

the court; and with leave he must have a keeper with him. Jac. Law Dic., (Jury.) It would hardly seem necessary that a keeper should attend a juror in all cases of occasional ab

sence.

6. Of the deliberations of the jury. When the jurors retire to deliberate upon the case, a constable ought to be sworn to keep them together and not to suffer any person to speak to them. 3 Bac. Ab., 768.

They should be kept together till they bring in their verdict, without speech with any, and without meat or drink, otherwise than with leave of the court by consent of the parties. Jac. Law Dic., (til. Jury.)

After their departure, they may desire to hear one of the witnesses again respecting a thing of which they are in doubt, and it shall be granted, so he deliver his testimony in open court. 3 Bac. Ab., 768. 7 Johns. Rep., 32. It is not uncommon for witnesses to be re-examined at the request of the jury, when any disagreement arises after they have retired to consider of their verdict. 9 Cowen's Rep., 65.

A witness may not be called by the jury to recite the same evidence he gave in court, when they have gone from the court to deliberate; nor may a party give a brief or notes of the case to the jury to consider of: if he doth, he and the jurors may be fined. Jac. Law Dic., (tit. Jury.)

After the jury have retired to consider of their verdict, the justice should have no intercourse with them except with the consent, or in the presence of the parties. 1 Cowen's Rep.,

258.

After the jury have retired to consider of their verdict, it is not irregular for the justice, at the request of the jury, to give them instruction upon the law of the case, if the parties are present, or have an opportunity to be present. 13 Wend. Rep., 274. 3 Bac. Ab., 768.

If the jury do not retire, a constable need not be sworn to attend them. 8 Johns. Rep., 437.

Of receiving and entering the verdict. A verdict is the answer of the jury given in court concerning the matter of fact committed to their trial, wherein every one of the jurors must agree. Jac. Law Dic., (tit. Verdict.)

It should be delivered to the justice publicly and in open court. 7 Johns. Rep., 32.

When the jury return into court, the justice should call over their names, and if they all appear, the plaintiff should then be called; for any time before the verdict is rendered, he may suffer a nonsuit; and if the plaintiff should not appear, the justice should give judgment of nonsuit against him, for he cannot receive the verdict. 5 Johns. Rep., 346. 10 Wend. Rep.,

522.

The justice should, however, be careful that both parties have an opportunity of being present at the time the jury are

ready to give their verdict, and not receive it in the absence of either party unless such absence be voluntary, for either party has a right to have the jury polled, that is, asked separately "Is this your verdict ?" 3 Johns. Rep., 255.

If the plaintiff, when thus called, answers, the verdict is to be received, and the justice will ask the jury, "who do you find for, the plaintiff or the defendant ?" and the foreman of the jury will state what their verdict is, which the justice will enter in his docket, and then say to the jury, "Listen to your verdict as the court has recorded it. You say you find for the plaintiff, (as the verdict is,) and so say you all ?" to which the jury signify their assent.

The law as to trials by jury in other courts, applies to justices' courts. Thus after a verdict is pronounced in court by the jury, they may alter it before it is recorded. 6 Johns. Rep., 68. So after a verdict is received, either party may require that the jurors be polled, and either of the jurors may disagree to it; in which case they must be sent out again. 7 Johns. Rep., 3 Johns. Rep., 255.

32.

A verdict should usually be for a specific sum; but a verdict for a certain sum with interest from a particular time, is sufficient, and the justice may calculate the interest, but he should make the calculation and submit it to the jury before the verdict is recorded. 1 Scam. Rep., 115.

A verdict of no cause of action is, substantially, a verdict for the defendant, and the justice should so enter the judgment. 2 Johns. Rep., 181.

A verdict for more damages than the party has demanded in his declaration or set-off is merely a defect in form: he may remit the excess, and take judgment for the residue. 3 Johns. Rep., 433. 1 Scam. Rep., 539.

Where the jury are empannelled before Sunday commenced, it is proper to receive the verdict on Sunday, if the jury do not agree before; but the justice must wait till the next day before he enter judgment thereupon. 13 Johns. Rep., 119.

Of discharging the jury. Justices should not too readily listen to the application from a jury to be discharged in case of disagreement, for, in most cases, it is not to be expected that a jury will at once all agree in opinion upon a case submitted to them. Juries should not be discharged because upon the first comparing of opinions there happens to be a disagreement. Temperate discussion may produce unanimity, and time should be allowed for that purpose; but when such time has been allowed, and the court becomes satisfied that there is no reasonable prospect of an agreement by further discussion, it becomes their duty to discharge. A jury should not be kept out so long that their verdict may be the effect of compulsion and not of their reason and under

standing. 1 Johns. Cas., 275, 301. 18 Johns. Rep., 187. 13 Wend. Rep., 55.

V. OF REFERRING THE CAUSE TO ARBITRATORS.

Gale's Stat., 407. "SEC. 20. In all cases the parties to a suit before a justice shall have the privilege of referring the difference between them to arbitrators, mutually chosen by them, who shall examine the matter in controversy, and make out their award thereon in writing, and deliver the same to the justice, who shall enter the said award on his docket, and give judgment according thereto."

CHAPTER VIII.

OF EVIDENCE.

EVIDENCE is used in the law for some proof by records, or writings, or by testimony of men on oath. Evidence contains. testimony of witnesses, and all other proofs to be given and produced to a jury, (or to the justice in case of trial without a jury,) for the finding of any issue joined between the parties. Jac. Law Dic., title Evidence.

By the 11th section of "An act concerning justices of the peace and constables," it is provided that "All evidence before a justice of the peace shall be under oath, and by parol, except where it shall be necessary to exhibit the signature or hand writing of the party against him, and except such evidence as shall be taken by deposition." Gale's Stat., 405.

The present design is to give only a few of the general rules relative,

1. To written evidence;

2. To parol evidence.

1. Of written evidence.

Written instruments are either public or private, or of a mixed nature, partly public and partly private. The acts of the legislature are records written on the rolls of the legislature, and are of the highest proof. They are of two kinds; public acts, which relate to the whole state at large, and private

acts, which relate to particular classes of men, or to certain individuals.

The general rule is, that public acts of the legislature are to be taken notice of judicially by courts of law without being formally set forth. They are merely referred to as it were to refresh the memory. 1 Scam. Rep., 73. But where the act is of a private nature, it will not be regarded by the judges unless formally shown and pleaded. 1 Starkie Ev., 196.

Gale's Stat., 287. "SEC. 1. That the printed statute books of this state and of the late territories of Illinois and Indiana, printed under the authority of said state and territories, shall be evidence in all courts and places of the private acts therein

contained."

By a statute of the United States, passed May 26, 1790, it is provided "That the acts of the legislature of the several states shall be authenticated by having the seal of their respective states affixed thereto."

It has been held, in this state, that an act of the legislature of the state of Ohio, certified by the secretary of state, to which is appended a certificate of the governor with the seal of the state affixed, certifying to the official character of the person signing himself as secretary, and that full faith and credit are to be given to his official acts, is not a compliance with the act of congress. The seal of state should be affixed

to the act itself. 1 Scam. Rep., 424.

Gale's Stat., 287. "SEC. 2. The printed statute books of the several states and territories of the United States, purporting to be printed under the authority of those states and territories, shall be evidence in all courts and places, of the legislative acts of those states and territories respectively."

"SEC. 5. An exemplification by the secretary of this state of the laws of the other states and territories, which have been, or shall hereafter be transmitted by order of the executive or legislatures of such other states or territories, to the governor of this state, and by him deposited in the office of the said secretary, shall be admissible as evidence in any court of this state."

The statute laws of one state cannot be noticed by the courts of another, unless they are pleaded. 8 Mass. R., 99. And it has been decided in Kentucky that the laws of a sister state cannot be judicially noticed there, but must be proved. 2 Marsh, 609. It has, however, been decided in this state, that it is no error to admit in evidence the laws of another state when they are like our own, even where there is no averment of such laws in the declaration. 2 Scam. Rep., 9.

A record of court may be proved either by the mere production of it, or by a copy. On account of the inconvenience to the public of removing such documents, they are but seldom produced in evidence, and are commonly proved by a copy. 1 Starkie Ev., 189.